Opinion
Cr. 7423
5-28-1964
, 392 P.2d 393 The PEOPLE, Plaintiff and Respondent, v. George W. BOSTICK, William Aifred Davis, Jr., Clarence Pitts and Jimmie Lawson, Defendants and Appellants.
B. T. Davis, Jr., Robert W. Stanley, Los Angeles, Erling J. Hovden, Public Defender (Los Angeles), under appointment by the Supreme Court, James L. McCormick, Deputy Public Defender, and Lee, La Vigne & Davis, for defendants and appellants. Stanley Mosk, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.
The PEOPLE, Plaintiff and Respondent,
v.
George W. BOSTICK, William Aifred Davis, Jr., Clarence Pitts and Jimmie Lawson, Defendants and Appellants.
B. T. Davis, Jr., Robert W. Stanley, Los Angeles, Erling J. Hovden, Public Defender (Los Angeles), under appointment by the Supreme Court, James L. McCormick, Deputy Public Defender, and Lee, La Vigne & Davis, for defendants and appellants.
Stanley Mosk, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.
PETERS, Justice.
Defendants George W. Bostick, William Alfred Davis, Jr., Clarence Pitts and Jimmie Lawson were charged with the murder of Oscar J. Williams on October 5, 1962. In a second count they were charged with robbing Williams while armed with a deadly weapon. Bostick and Pitts were charged with and admitted two prior felony convictions. A jury found each guilty of murder in the first degree, guilty of the robbery, and of the charge of being armed at the time of the commission of the offense. On the penalty issue, the same jury imposed the death penalty on Bostick, and life imprisonment on his three codefendants. Motions for new trial were denied, Bostick's motion to reduce the penalty was denied, and each of his codefendants was denied probation. Bostick's appeal is automatic (Pen.Code, § 1239). The appeals of Pitts, Lawson and Davis have been taken over by this court in order to have the four matters heard and decided together.
If the facts be viewed, as they should, in the light most favorable to the prosecution (People v. Sweeney, 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049; People v. Caritativo, 46 Cal.2d 68, 70, 292 P.2d 513), it appears that Williams, the victim, spent the night of October 4-5, 1962, at the Intime Club, of which he was a member. The club premises consisted of a dance floor with tables around it, bandstand, bar, and a back room with a pool and billiard table. These two tables were also used for dice games.
Williams arrived at the club in possession of more than $1800 which he had won in a baseball pool. During the night he increased that sum by gambling, and was seen, on several occasions, to display a large roll of bills. Pitts, Lawson and Davis, who were also members of the club, were on the premises for several hours commencing at 2 or 3 a.m. At approximately 5 a.m. the three planned to rob Williams. Because they knew that all three would be recognized, Pitts suggested that he get a fourth man, known to him, but unknown to the other club members, who might be interested. This man was Bostick. They then drove to an address where Davis picked up a pistol, and then drove to Bostick's residence. After being advised of the plan by Pitts, Bostick agreed to join them, and they drove back to the club. At that point Davis gave the pistol, which was loaded, to Bostick. At least one, and perhaps two, of the original trio entered the club to determine if Williams was still there, while one or more remained in the car with Bostick. Although there is some conflict in the evidence as to the sequence of trips into the club by the various defendants, there is no question but that Pitts was in the club and the other three were outside at the moment (between 8 and 8:30 a.m.) when the crime was consummated. 1 At that time, the victim left the club, crossed the street to where his car was parked, and entered the driver's compartment. Davis, Lawson and Bostick were in their car parked within view of Williams' automobile. Davis and Lawson identified Williams for Bostick, and the latter proceeded with the robbery while his companions waited in the car. According to independent witnesses, a man dressed in a red sweater (later identified as Bostick's) accosted Williams as he sat behind the wheel of his car, two shots were fired, the assailant was seen to reach inside the car and to then run toward the corner with a pistol and what appeared to be a package in his hands. The exact sequence of the shots and the reaching into the car is not entirely clear from the testimony of the various witnesses. Bostick stated that he approached Williams with gun in hand, demanded his money, and, seeing the bulge of bills in the victim's hip pocket, reached in and grabbed the pocket which tore loose in his hand. 2 He claimed that he had no intention of shooting, and that the gun was fired when Williams grabbed his arm and struggled to disarm him. In either event, the independent witnesses immediately ran to Williams' car, where they found the latter unconscious and bleeding, and with his hip pocket torn out. A short time later another witness, at a point far removed from the scene of the crime, saw three men park an automobile, place an object which appeared to be a pistol under its hood, divide between themselves a sum of money, and leave. Those three men and the car were sufficiently identified to justify the conclusion that they were Davis, Lawson and Bostick. 3 Williams died as a result of the shooting.
In addition to the testimony of the various prosecution witnesses, the People introduced seven tape recordings and two written records of extra-judicial statements of the various defendants. Exhibits 18 and (9 were recordings of conversations between the police and Bostick; 20 was a written admission against interest by Bostick; 21 was a recording of a conversation between the police and Pitts; 22 was a recording of a conversation by the police with Bostick and Pitts, jointly; 23 was a recording of a conversation with Lawson; 24 was a written admission against interest by Lawson; 25 was a recording of police conversations with Davis; and 26 was a recording of a conversation which the police had jointly with Lawson, Pitts and Davis. Each of these exhibits was obtained while the respective defendant was in custody. Most of the recordings were obtained by hidden microphone, without any knowledge on the part of the person or persons being interviewed. Each exhibit contained admissions or confessions, together with accusations against or declarations which implicated the other codefendants. Voir dire was allowed prior to the introduction of each. In almost every instance, the police officers who identified the tape recordings admitted that they were not complete in that the conversations had commenced sometime prior to the recording, and testified that they only turned on the recorder when they felt that they had the true story. Thus, the events and conversations which led up to and immediately preceded the recording of the various extrajudicial statements are not recorded. This fact is relevant to the appeals of Davis and Lawson, who objected to the introduction of their statements on the ground that they were not voluntary, but is not relevant to the appeals of Bostick or Pitts, who neither objected nor have they made such specification on these appeals.
In each instance that a recording was admitted in evidence and played to the jury, the trial judge carefully protected the rights of all parties by: (1) a requirement that the prosecution first make a prima facie case that the statement was voluntary; (2) voir dire examination of witnesses by the defendant or defendants to be affected; (3) admonition to the jury that the voir dire testimony was to be received solely for the purpose of determining the alleged voluntary nature of the statement; (4) careful limitation of the voir dire testimony to matters which were relevant to that issue; (5) argument, submission and analysis (outside of the presence of the jury) of the evidence produced on voir dire, for the purpose of determining whether, in the court's opinion, the statement should go to the jury; 4 (6) admonition of the jury that the admission of the recording was not to be taken by them as determinative of its voluntary nature, but that they, as the finders of fact, were to determine that point, and reject it in its entirety if they found it to be involuntary; (7) further admonition of the jury that the recording about to be played was admitted solely as against the defendant or defendants whose conversation was recorded, and that if it contained references to any othr defendant such references were not to be considered by the jury.
Further, in each instance that a recording was admitted, by stipulation of all counsel, each member of the jury panel, each counsel, the court and the reporter were handed typewritten transcripts thereof. The Issues:
The various defendants raise distinct issues on appeal. Except in the case of Lawson and Davis (who are represented by the same counsel) none raises an issue raised by a codefendant. However, where a specification of error is equally applicable to a defendant who has not raised it, we have considered it on behalf of both. The specifications of error raise the following issues:
A. As to the trial on the issue of guilt:
1. The court erred in admitting extrajudicial statements which included reference to prior convictions when the charge of such priors had been admitted. (Issue raised by Bostick, only, but equally applicable to Pitts.)
2. The court erred in admitting the extrajudicial statements in toto, because they contained hearsay as to codefendants. (Issue raised by Bostick, only, but equally applicable to all defendants who objected to such admission.)
3. The court erred in admitting the extrajudicial statements on the ground that they were not voluntary. (Issue raised by, and applicable only to, Lawson and Davis.)
,4. The court erred in its instructions regarding the right of a defendant to refuse to testify. (Issue raised by Pitts, but equally applicable to all defendants.)
B. As to the trial on the issue of penalty, Bostick claims that the trial court should have halted the proceedings and ordered a jury trial on the issue of sanity.
There is no merit in any of these contentions.
There is one other point involved relating only to the penalty trial of Bostick. In a supplementary brief he urges that evidence was introduced and instructions given contrary to the rules announced in People v. Morse, 60 A.C. 613, 36 Cal.Rptr. 201, 388 P.2d 33, where such errors were held to be prejudicial. There is merit in the contention. For that reason the judgment imposing the death penalty must be reversed. Admission of Matter Referring to Prior Convictions:
When a charge of prior conviction (which is not an element of the crime for which defendant is on trial) has been admitted out of the presence of the jury, it is error to admit evidence of such conviction during the guilt phase of the trial (People v. Thomas, 110 Cal. 41, 42 P. 456; People v. Ozuna, 213 Cal.App.2d 338, and cases cited at p. 341, 28 Cal.Rptr. 663; all interpreting the provisions of Pen.Code, §§ 1025 and 1093, which prohibit any allusion to the prior convictions). In the present case, the only allusions to prior convictions were included in the recorded transcripts of the extrajudicial conversations of Bostick and Pitts, each of which was admitted by stipulation. Thus, those two defendants are not only barred by the rule that they may not raise an objection to the evidence for the first time on appeal, but they come directly within the rule of invited error. The entire contents of the recordings were known to them, in that they had previously been asked to review and stipulate to the correctness of typewritten transcripts. They advised the court that they had so stipulated, and failed to call the court's attention to the fact that there was any matter contained therein which should not be heard by the jury. On the contrary, they stipulated that the entire recordings might be played to the jury, and that each juror might be given a copy of each transcript.
In an attempt to escape the legal effects of such stipulations, Bostick now urges that it was the duty of the trial court to strike the portions relating to the prior convictions on its own motion. For such proposition he cites People v. Roof, 216 A.C.A. 260, 30 Cal.Rptr. 619; People v. Kelly, 146 Cal. 119, 79 P. 846; People v. Moore, 137 Cal.App.2d 197, 290 P.2d 40; and People v. Derbert, 138 Cal. 467, 71 P. 564. It is true that those authorities hold that when harmful testimony is clearly improper for the jury's consideration, the court should take the initiative and admonish the jury to disregard it, and further, that the fact that no objection is raised to a question referring to a prior conviction does not necessarily cure the error. But those cases involved situations where the counsel for defendant had no method of knowing that the objectionable material was about to be elicited, and objection after the fact might have increased the harm done. Thus, in Roof it is said (supra, 216 A.C.A. at p. 264, 30 Cal.Rptr. at p. 621), 'The situation is entirely different from one where there is an opportunity to register an objection and none is made.' In addition, several of the cited cases deal not with situations wherein a prior conviction was charged and admitted (thus within the purview of Pen.Code, §§ 1025 and 1093), but with situations in which the prosecutor attempted to place in evidence the fact that defendant had been previously convicted of a crime having no relevance to the issues of the matter being adjudicated. The bad faith of the prosecutor was a controlling factor. But here, there is and can be no question of bad faith, for the prosecuting attorney gave defense counsel complete information as to his intentions in advance. Defense counsel had no need to rely upon the initiative of the court in striking the evidence after the fact, since he could have forewarned the court. His failure to do so was a clear invitation to error. And the fact that the court read and considered the statements in advance did not relieve the defendant of the duty to point out the inadmissible portions thereof when he knew that the court's perusal was solely for the purpose of determining the voluntary nature of the statements. 5 Admission of Statements Containing Hearsay as to Codefendants:
Bostick maintains that all of the recordings of the conversations between the police and the various defendants should have been excluded because each contained hearsay accusations against defendants not party to such conversations. If there were any merit to the contention, it would be equally applicable to all defendants, although the issue is raised only by Bostick. Bostick concedes that it is generally permissible to play tape recordings to the jury and to supply the jurors with transcripts. But he claims an exception to that general rule where such evidence contains declarations which ae highly prejudicial to the codefendants. His argument is that when one piece of evidence contains both admissible and inadmissible matters, an admonition to the jury to disregard the inadmissible portion does not cure the prejudice which arises as soon as the jury hears the inadmissible portion. In other words, he claims that the jury was incapable of following the court's instruction to limit the evidence of the tape recordings to the defendant whose voice was recorded. To support his argument he cites several decisions which are clearly distinguishable. For example, People v. Zammora, 66 Cal.App.2d 166, 212, 152 P.2d 180, 204, holds that when prejudicial statements are received in evidence with an admonition to the jury to limit their application, 'to hope that they might be forgotten by the jury in their deliberations is to belie human nature and challenge human experience.' While this quotation may appear to support Bostick's argument, it was qualified by the very next sentence of the opinion, where the court specifically noted that what it was saying had application only to the facts of that case, in which it appeared that the various statements which were admitted into evidence either contained no admissions against interest (and thus served no purpose other than to get before the jury the hearsay accusations against a codefendant), or were in such shape that the admissions could have been presented to the jury absent the prejudicial hearsay. Also, in Zammora, timely objection was made. In the instant case there can be no doubt of the relevancy of the recorded statements as admissions against interest, and no suggestion has been made as to how the court might have deleted the inadmissible hearsay if it had received a request to do so. Instead of making such request, each of the defendants contented himself (insofar as his codefendants' statements were concerned) with objecting to the admissibility as against himself. And, in each instance, the court admitted the statement exclusively against the defendant who made it, and properly explained the purpose and effect of his ruling to the jury. Thus, the situation here is in no manner comparable to that in Zammora. People v. Foote, 48 Cal.2d 20, 306 P.2d 803, and People v. Bracamonte,197 Cal.App.2d 385, 17 Cal.Rptr. 62, both relied on by Bostick, are similarly distinguishable, although to a more limited extent.
It is also true that the prosecuting attorney became confused during his closing arguments, by attributing wrong statements to certain of the defendants. But in each such instance either no objection was made, or where objection was made, the error was corrected, and the jury set straight on which portions of the statements might be considered as against which defendants. This, of course, served to strengthen and remind the jury of the previous admonition given by the court, and to protect each defendant against the possibility that the jury would consider hearsay as against him.
It is well established that where the extrajudicial statement of one of several joint defendants contains admissions material to the conviction of the defendant who made it, it may be received in evidence as against that defendant even though it may contain incriminating hearsay against his codefendants, so long as the jury is properly admonished and instructed that they may not consider it as against any defendant save the one who made the statement. (People v. Roberts, 40 Cal.2d 483, 254 P.2d 501; People v. White, 186 Cal.App.2d 853, 858-859, 9 Cal.Rptr. 99; People v. Mullins, 145 Cal.App.2d 667, 303 P.2d 58.) That rule is even more pertinent when, as here, no request was made that the trial court do other than so admonish and instruct the jury. (See People v. Millum, 42 Cal.2d 524, 267 P.2d 1039.) The Voluntary Nature of the Extrajudicial Statements:
Lawson and Davis contend that the trial court erred in overruling their objections to the introduction of their own extrajudicial statements on the ground that the same were obtained by police promises of reward, and, in the case of Davis only, by threat of the gas chamber. No claim is made that the police resorted to abuse or physical violence of any nature.
Lawson's recorded statements were made at police headquarters, where he had voluntarily appeared on the evening following the shooting, and after he had learned that the police were looking for him. As a result of those statements he was booked. Davis was arrested at his home the next morning, probably as a result of Lawson's statement. The recording of his conversations with the police were made at headquarters after his arrest. In both instances, as noted above, the recordings do not include those portions of the conversations which preceded and followed that which the police believed to contain the true story. The police witnesses explained this fact by testifying that it was their custom to turn on the recorder (which was in another room and connected to a concealed microphone in the room wherein the interrogation took place) only when satisfied that the suspect was relating the truth. Neither defendant has made an issue of the fact that the recordings were made without their knowledge, and neither deny that the recordings accurately report that portion of the conversations which they purport to cover. Those portions include full admissions of the facts which constitute the crimes with which defendants were charged.
Lawson and Davis both testified that before either of them agreed to tell the stories which were recorded, the police told them, on numerous occasions, that they (the police) would help them (the defendants) if the latter would tell the truth. They further testified that since the police told them that there were many different crimes with which they could be charged (and several degrees of each such crime), they interpreted the promises as promises to help to have them charged with a lesser crime than murder, and to actively seek leniency on their behalf. Davis further testified that the police threatened him with the Green Room (i. e., the gas chamber) if he did not tell them the truth. He also testified that he asked for permission to contact an attorney before giving his statement, and that such permission was refused.
In contradiction of that testimony, the police testified that before interrogating any of the defendants they already had the information from the independent witnesses, and that while such information was not sufficient to determine who had done the actual shooting, it was sufficient to acquaint them with the fact that the first stories told by each of the defendants were false. They admitted that they advised each of the suspects of their belief that they were lying, and that if such defendant did not do the actual shooting 'it would help him if he told the truth.' This they interpreted as meaning that each suspect could materially help himself, if he were not the actual trigger man, by pointing the finger of accusation at that person. They denied that such remarks were repeated more than once or twice. They explained their references to the various degrees of crime, and to the gas chamber, as being solely in reply to the defendants' inquiries as to what could happen to them. They denied that any such explanations were posed as threats. They admitted that Davis had asked to contact an attorney, but denied that such request was made prior to the recorded portion of the conversation. They testified that after the recording had been completed Davis asked permission to contact a named attorney, that one of the officers suggested that he would do better with the public defender, and that the matter was thereupon dropped without any further request by Davis.
As already pointed out, the trial judge took great care to analyze all of such voir dire testimony before ruling on the admissibility of the recordings. He properly expressed grave concern over the tactics of the police in failing to record the entire conversations. He expressed his dissatisfaction with one of the officers as a witness. On the other hand, he expressed equal dissatisfaction with the testimony of the defendants, and with their manner of replying to questions. He pointed out that the claim of repeated promises to help was not sustained, when the testimony was analyzed in toto, and that there was nothing in an exhortation to tell the truth if it was not intended or understood as a promise of leniency. He correctly expressed the rule announced in People v. Brommel, 56 Cal.2d 629, 632, 15 Cal.Rptr. 909, 364 P.2d 845, to the effect that the pertinent issue presented to him was the motivation of the respective defendants in making their statements. With that issue in mind, he further pointed out that the defendants could very well have been motivated by the knowledge that the police had sufficient evidence to incriminate them, and the desire not to 'take the rap' as the actual trigger man. The record adequately shows that with all of the foregoing considerations in mind, and with expressed views regarding the demeanor of the witnesses and their manner of testifying, the trial judge then came to the conclusion that, in his opinion, there was sufficient evidence of the voluntary nature of the statements to go to the jury, and sufficient conflict in that evidence to sustain whatever decision the jury might make on that issue. His great concern in the matter was particularly pointed up by his expression of doubt that the jury could properly determine that issue if they knew of his interlocutory ruling that the statements were admissible. In that regard, he pointed out that the law required him to make the first decision, and that he knew of no rule which permitted him to keep that information from the jury. However, when one of the counsel asked permission, he allowed the objection to the evidence, and the order overruling that objection, to be made out of the presence of the jury. It is obvious that he made a legal, fair and adequate disposition of the issue raised in the trial court of the claim that the extrajudicial statements were involuntary.
Neither People v. Brommel, supra, 56 Cal.2d 629, 15 Cal.Rptr. 909, 364 P.2d 845, nor the other cases relied on by defendants are applicable. In each there was either an admitted promise or threat, or an implied one. In the instant case there is only the claim of such, contradicted by denials. The trial court passed upon that conflict in the evidence, leaving no question of law to be determined by this court. Even if there were such a question of law, it would be adequately answered by People v. Ditson, 57 Cal.2d 415, 433, 20 Cal.Rptr. 165, 174, 369 P.2d 714, 723 in which exhortations to the suspect 'to help himself by revealing the acts of others. * * * or exhortations to tell the truth * * *,' were held to be insufficient to compel a finding of coercion. See also People v. Hawk, 173 Cal.App.2d 434, 438, 343 P.2d 388, 390, where the officer's statement, 'Well, it will help you more than it will help us by cooperating with us,' was held not to constitute a promise of reward. Defendant's Right to Refuse to Testify:
Defendant Pitts, as his sole point on appeal, contends that he was deprived of his right not to be a witness against himself, in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. He predicates this contention on the fact that the court instructed the jury that although a defendant need not testify, if he fails to testify, 'the jury may take that failure into consideration as tending to indicate the truth' of such evidence as he could reasonably be expected to deny or explain because of facts within his knowledge, and on the further ground that the prosecuting attorney placed emphasis on the fact none of the defendants testified. He also points out that if he had taken the witness stand, evidence of his prior convictions, which otherwise would have been inadmissible, could have been brought to the attention of the jury. He concedes that all of these things are permissible under the provisions of section 13 of article I of the California Constitution (the so-called 'Comment Rule'), and that the United States Supreme Court, in Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, held that the Fifth Amendment to the United States Constitution was not applicable to the several states, and was not made so by operation of the Fourteenth Amendment. But he urges that the United States Supreme Court is about to change its mind and reverse Adamson, and contends that we should so decide. He urges that there is a trend in the United States Supreme Court to hold that more and more of the prohibitions expressed in the Bill of Rights are controlling against the states by reason of the due process clause of the Fourteenth Amendment. He points to the fact that the higher court recently granted certiorari in Malloy v. Hogan, 373 U.S. 948, 83 S.Ct. 1680, 10 L.Ed.2d 704 in which one of the questions is whether or not the Fifth Amendment privilege against self-incrimination should be made applicable to the states. He points to the concern of certain legal commentators (specifically, Charles T. McCormick, in his work on 'Evidence') over the 'Comment Rule.' But he can point to no decision of the United States Supreme Court which has, as yet, overruled Adamson and he makes no argument that has convinced us that this court should take upon itself the prerogative of assuming that the higher court will reverse itself. Without such a base, his contention is without merit. The Issue of Sanity:
Bostick did not plead insanity, and he does not point to any fact or occurrence during the trial which should have raised a doubt as to his sanity. However, he claims that the court, of its own volition, should have declared a doubt of his sanity in the sense that 'insane' is defined in Penal Code section 1367, and should have instituted the procedures set forth in Penal Code section 1368. His reliance on People v. Merkouris, 46 Cal.2d 540, 297 P.2d 999, and similar authorities, is misplaced. In those cases the records were replete with facts which should have caused the trial judge to entertain a doubt as to the defendant's present sanity within the meaning of the code sections. Here, the question never arose until after the verdicts were rendered. The trial judge then stated that he felt that it would 'be helpful at the time of judgment and sentence * * * if the Court had the report of at least two qualified psychiatrists. * * *' He expressly emphasized the fact that there was no question in his mind as to the sanity of the defendant (i. e., his ability to understand the nature and object of the proceedings, and of conducting his defense in a rational manner), but that he desired the information solely in order to have 'a complete history of the social and historical background of this defendant.' The psychiatrists were then appointed, and one, only, of the two reports indicated a mental illness. But even that report reflected a legally sane mind. There is nothing in the record to indicate that the trial court should have entertained a doubt as to Bostick's sanity as a matter of law.
Thus the judgments in reference to the guilt of all of the defendants must be affirmed. Errors in the Penalty Phase of the Trial:
In reliance upon what was then the expressed view of this court, all counsel stipulated during the penalty phase of the trial that if Mr. Spangler, Secretary of the Adult Authority, was called as a witness he would testify to certain specified facts concerning the length of time served by the average defendant convicted of murder in the first degree and sentenced to life imprisonment. In addition, the court instructed the jury in the terms of CALJIC No. 306 (including the right of the Governor to pardon or reduce sentence, and the right of parole), and the prosecuting attorney argued the same matters to the jury. In People v. Morse, supra, 60 A.C. 613, 36 Cal.Rptr. 201, 388 P.2d 33, the giving of such instructions, the introduction of such evidence and the making of such argument were held to constitute reversible error. In People v. Hines, 61 A.C. 148, 37 Cal.Rptr. 622, 390 P.2d 398, it was held that, within the meaning of section 4 1/2 of article VI of the Constitution, such errors resulted in a miscarriage of justice and therefore required a reversal of the death penalty judgment. (See also People v. Terry, 61 A.C. 121, 37 Cal.Rptr. 605, 390 P.2d 381; People v. Quicke, 61 A.C. 139, 37 Cal.Rptr. 617, 390 P.2d 393; People v. Arguello, 61 A.C. 196, 37 Cal.Rptr. 601, 390 P.2d 377; and People v. Kroeger, 61 A.C. 222, 37 Cal.Rptr. 593, 390 P.2d 369.) For the reasons stated in those cases the judgment imposing the death penalty on Bostick must be reversed.
The judgment imposing the death penalty on Bostick is reversed, and the matter is remanded for a new trial as to him on the penalty issue. In all other respects the judgments are affirmed.
GIBSON, C. J., and TRAYNOR, TOBRINER and PEEK, JJ., concur.
SCHAUER, Justice (concurring and dissenting).
Pursuant to our holding in People v. Morse (1964) 60 A.C. 613, 634(6a), 36 Cal.Rptr. 201, 388 P.2d 33, I find procedural error of the type but not aggravated by the background defined therein. (This type of error which 'improperly diminishes the jury's recognition of their duties and responsibilities and powers' previously had been denounced in People v. Linden (1959) 52 Cal.2d 1, 27 (26b, 32) 338 P.2d 397; see also id., 52 Cal.2d at p. 28(33), 338 P.2d 397.) In Morse, having declared the error, we held (60 A.C. p. 634(6a), 36 Cal.Rptr. 201, 388 P.2d 33): 'after examination of the entire cause, including the evidence, we are of the opinion that it is reasonably probable that a result more favorable to defendant as to penalty would have been reached in the absence of the error.' (See Cal.Const., art. VI, § 4 1/2; People v. Watson (1956) 46 Cal.2d 818, 836-837(12), 299 P.2d 243.) Neither the Morse decision nor Watson has been overruled or disapproved as to the meaning or relevancy of California Constitution, article VI, section 4 1/2.
Application of the Morse rule to the record now before us, in my view, requires affirmance of the judgment as to penalty as well as guilt. Following the ratio decidendi of Morse, and paraphrasing its language, 'after examination of the entire cause, including the evidence, (I am not) of the opinion that it is reasonably probable that a result more favorable to defendant as to penalty would have been reached in the absence of the error.' The majority here have not postulated the cornerstone finding which was unequivocally articulated in Morse.
Accordingly, I would affirm the judgment in its entirety. (See also my dissents to People v. Hines (1964) 61 A.C. 148, 159-166, 37 Cal.Rptr. 622, 390 P.2d 398; People v. Terry (1964) 61 A.C. 121, 138, 37 Cal.Rptr. 605, 390 P.2d 381; People v. Arguello (1964) 61 A.C. 196, 201, 37 Cal.Rptr. 601, 390 P.2d 377; People v. Polk (1964) 61 A.C. 203, 221, 37 Cal.Rptr. 753, 390 P.2d 641; People v. Kroeger (1964) 61 A.C. 222, 235, 37 Cal.Rptr. 593, 390 P.2d 369.)
McCOMB, J., concurs. --------------- 1 Pitts later contended that after he entered the club, he decided to withdraw from the conspiracy. However, he offered no evidence that such determination was ever transmitted to the other defendants, or that he took any step to prevent Williams from walking out of the club and into the trap awaiting him. 2 Any reference to a claim, admission or statement of any defendant, is derived from an extrajudicial statement or from a recording of such which was admitted in evidence. None of the defendants testified during the guilt phase of the trial, except on voir dire in regard to the voluntary nature of his extrajudicial statements. 3 Pitts, not being present, was not 'cut in' on the 'take.' 4 The great care which the trial judge exhibited is illustrated by the further facts that in several instances he took the matter under submission during recesses (sometimes over night) in order that he might have the opportunity to play and replay the recording; that he expressed grave concern over the actions of the police in failing to record those portions of the conversations which may have contained promises of reward, and resolved that doubt in favor of the jury's duty to accept or reject the oral testimony given in regard to the unrecorded portions of the conversation; that he expressed a correct view of the law which required him to make a decision as to the Voluntary nature of the statement in the first instance, while leaving the final conclusion to the jury; that he expressed his misgivings in regard to the jury's ability to find that the statements were involuntary if, as and when it became advised that the court had, even provisionally, determined them to be admissible; that he predicated his final conclusions on the proposition that, considering all of the evidence submitted on voir dire, it appeared to him that no alleged promise or threat (there having been no claim of physical abuse) motivated the making of any of the statements. 5 None of the defendants contend that the evidence was insufficient to sustain the finding of guilt, or that the accusations of the codefendants were not sufficiently corroborated. The evidence in fact is more than sufficient to sustain the finding of the guilt of all of the defendants.