Opinion
Page __
For Opinion on Rehearing, see 47 Cal.Rptr. 1, 406 P.2d 641.
Burke, McComb and Schauer, JJ., dissented.
[44 Cal.Rptr. 776] [ 402 P.2d 848] Claude O. Allen and Chris G. Gasparich, Oakland, under appointment by the Supreme Court, for defendants and appellants.
Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.
TRAYNOR, Chief Justice.
Defendants were convicted of first degree murder and sentenced to death. On appeal, the judgments were reversed for a new penalty trial only. (People v. Polk, 61 Cal.2d 219, 234, 37 Cal.Rptr. 753, 390 P.2d 641.) Upon retrial, the jury again fixed the penalty for each defendant at death. This appeal is automatic. (Pen.Code, s 1239, subd. (b).)
Defendant Gregg told many conflicting stories in describing the circumstances of the murder, as did defendant Polk. Certain facts, however, are not disputed. On March 30 or 31, 1962, defendants met in a Los Angeles restaurant and agreed to drive north. Shortly after passing Bakersfield, defendants picked up William Fambro, a 20-year-old sailor who was hitchhiking to his ship. After driving further along Highway 99, Polk shot Fambro three times. As Fambro was dying, someone ripped open his trousers and 'rather crudely amputated' his penis. Fambro's wallet was stolen, and Polk and Gregg threw his body over an embankment.
At the trial on the issue of guilt, Polk and Gregg testified that they were alone at the time of Fambro's murder. They met at the Los Angeles restaurant and agreed that they needed money. Polk suggested that they 'pull some jobs together.' Gregg asked, 'What kind of jobs?' and Polk replied, 'Service stations and liquor stores. Gregg agreed. Polk then stole a car, obtained a gun from his apartment, and picked up Gregg. As they began driving, Polk suggested that they head north to pull the jobs since the police were 'too hot' in Los Angeles. After looking over a few places in San Fernando, they headed north on Highway 99. They cased some places in Bakersfield, and continued north looking for something to 'knock over.' They saw William Fambro hitchhiking and stopped to pick him up. The defendants disagree about what happened then. Polk testified that Gregg and Fambro began arguing, and that he became involved in the argument only after Fambro called him dirty names. Polk stopped the car, began fighting with Fambro, and pulled out his gun and shot Fambro three times. Polk accused Gregg of amputating Fambro's penis and of stealing his wallet. Gregg testified that there was no argument and that Polk shot Fambro without warning after Fambro had complied with Polk's demand for his wallet. Gregg accused Polk of amputating Fambro's penis. After the amputation, the defendants threw Fambro's body over an embankment and headed back to Los Angeles.
Defendants testified at the second penalty trial and also told the police that four people were involved in the murder of William Fambro. Although the details of their many stories varied widely, they testified at the trial that they met Avery Matthews and Herford Sterling on the evening of March 31, 1962, and decided to drive [44 Cal.Rptr. 777] [ 402 P.2d 849] north to San Francisco. Polk stole a car, and the four headed north in the early hours of April 1. Matthews drove, Sterling sat baside him in the front seat, and Polk and Gregg sat in the rear. Near Bakersfield, they picked up William Fambro who was hitchhiking and he sat in the back seat between the defendants. As they proceeded north, Matthews asked Fambro if he ever had sexual relations with a homosexual, reaching his hand over to the back seat. Fambro replied, 'no,' and knocked the hand away. Fambro and Gregg began an argument about the military service. Polk became involved when Fambro used the word 'nigger,' and the two began to fight. During the fight, Gregg lifted Fambro's wallet. Polk then pulled out his gun and shot Famobro three times. They continued driving, and pulled off on a side road. Polk got out, Gregg sat shocked in the back seat, with Fambro dying beside him. Matthews turned around on his knees, ripped open Fambro's fly with a knife, amputated Fambro's penis, and placed it in his mouth, laughing in a high-pitched, woman's voice. Polk returned to the car, and they drove further along the road. They stopped to dump the body down an embankment and then headed back to Los Angeles.
Matthews has denied complicity in the crime. He was a defendant originally, but the charges against him were dismissed on the thirteenth day of the guilt trial. The district attorney announced that Matthews had been in jail until 4:45 p. m. on March 31, 1962, and that therefore there was a reasonable doubt that Matthews was present when Fambro was killed. (People v. Polk, 61 Cal.2d 217, 225, 37 Cal.Rptr. 753, 390 P.2d 641.) Herford Sterling apparently has never been found.
The evidence linking defendants with other brutal crimes was summarized in our former opinion as follows:
'Jack Blonde testified that on the evening of May 15 or 16 he met Polk, Gregg and Matthews in the Dairy Lunch. They drove around in a 1953 Mercury, saw a drunk and decided to rob him. Matthews parked the car, Blonde threw the victim to the ground, and Polk 'stomped' him by jumping on his chest with both feet. They took his wallet and watch and drove away. Thereafter they attempted to obtain a gun but were unsuccessful. The following night the four of them went walking, 'looking for another person to rob.' Polk and Gregg walked on one side of the street, Matthews and Blonde on the other. Blonde spotted a 1962 Pontiac station wagon following them, and Matthews told him to 'act like a queen' (i. e., the 'female' partner in a male homosexual relationship). The witness explained that this meant to walk 'swishing' one's buttocks from side to side. The driver of the station wagon, a Mr. Delaney, stopped and picked up Blonde and Matthews. As they entered the car Blonde motioned for Polk and Gregg to follow, but the latter were unable to do so. After driving around in a pretended search for benzedrine, Matthews threw pepper in Delaney's eyes, and Blonde stabbed him four times in the chest. Delaney escaped from the car, but Matthews and Blonde chased him, knocked him down, kicked him several times, and tore his clothes looking for money. They then took his station wagon, returned to the Dairy Lunch and picked up Polk and Gregg, and stole a set of paper license plates for the car. Taking Johnny Keyes with them, the five set out for San Francisco with Matthews driving. First they saw an old man with a cane, and selected him as a victim. Blonde, Polk and Matthews, the latter carrying an iron bar, got out of the car. Polk and Matthews grabbed the old man, the cane and iron bar flew through the air, and the man fell to the ground. The assailants ran back to the car with the victim's wallet and drove on.
'Neil Schill, a paratrooper * * *, testified that after midnight on the morning of May 17, 1962, he was hitchhiking on Highway 99 just north of Bakersfield when he was picked up by a new Pontiac station [44 Cal.Rptr. 778] [ 402 P.2d 850] wagon. On entering the car he first saw only three people, two in the front and one in the middle seat; the driver appeared to be a woman, was wearing a woman's sweater, and was referred to as 'her' by the others. After he got in, Schill heard someone stirring behind him and saw two men in the back seat. A few minutes later they pulled into a gas station to have the car's radiator serviced, and all but Schill went into an adjoining restaurant. Schill, who had not slept for two days, remained in the car and tried to sleep. In the restaurant it was decided to rob Schill, and Matthews emptied the peopper from a shaker on the table, rolled it in a napkin and put it in his pocket. On returning to the car Matthews and Polk entered the front seat, Gregg and Blonde entered the middle seat on either side of Schill, and Keyes got in the back.
Defendants and Matthews were convicted of conspiring to kidnap Neil Schill for the purpose of robbing him. The defendants were sentenced to the state prison for the term prescribed by law. (Pen.Code, ss 182, 209.) That judgment was affirmed on appeal. (People v. Polk, 61 Cal.2d 217, 219, 235, 37 Cal.Rptr. 753, 390 P.2d 641.) In another proceeding Blonde pleaded guilty to the robbery of Schill.
'Schill testified that shortly thereafter 'we were driving along about eighty miles an hour and the woman Matthews said, 'Neil, do you know what you can do for me?' And I said, 'No, what?' And he said, 'Well, you can start by taking all your clothes off.' And I said, 'Are you serious?' And at this time Blonde pulled a knife and held it in front of my face and said, 'Yes, she is serious, or else I'm going to cut you up. '' Schill grabbed the blade and twisted it away from Blonde; as he turned to do so, Gregg reached into Schill's back pocket and took his wallet. Then, as Schill described it, 'everyone started to swing at me and kick at me, and I believe Polk had taken some pepper out of the glove compartment and rubbed it in my eyes.' Matthews finally brought the car to a stop, and everyone except Schill scrambled out and took positions around the outside of the car, trying to keep all the doors shut but one. Matthews stood at the open door with a beer bottle in his hand, saying, 'get the lead pipe.' As Schill got out Matthews said to him, 'Take your clothes off or else I'm going to smash you in the face.' Schill lunged forward and Matthews hit him in the face with the bottle, breaking off a tooth and badly cutting his mouth. When Schill tried to get up Matthews kicked his feet out from under him. But Schill, bleeding heavily, managed to run across the highway and escape by flagging down a passing car.
'Blonde testified that the five continued driving to San Francisco, having divided among them the contents of Schill's wallet and duffel bag. Keyes left the party in San Francisco, and the remaining four drove around the city 'looking for somebody to rob.' They saw a Mexican walking along the sidewalk and pulled him into the car. As they continued driving they robbed him of his watch and a ring, and forced him to remove his clothes, and turned him out into the street naked except for his socks. They found no more victims to rob in San Francisco, although they were 'hoping for another one.' On their return trip to Los Angeles they picked up a hitchhiking sailor, turned off the highway onto a side road, and robbed him of his money and the contents of his duffel bag.' (People v. Polk, 61 Cal.2d 217, 221-223, 37 Cal.Rptr. 753, 755-756, 390 P.2d 641, 643-644.)
The police and a psychiatrist who examined defendants at the request of the district attorney testified that Polk admitted complicity in the killing of a gas station attendant, Raymond Sweet, on March 17, 1962, and, with Jesse Ferguson, in kicking to death in Los Angeles on April 10, 1962, a skid row inhabitant called 'The Hook.'
Defendants, Matthews, and Blonde were arrested in Los Angeles on May 20, 1962. The police began to question defendants on the day they were arrested and continued to do so for several months thereafter..[44 Cal.Rptr. 779] [ 402 P.2d 851] They obtained numerous confessions concerning the murder of Fambro and the incidents occurring on the May trip to San Francisco. One officer estimated that he talked to defendant Gregg twenty times and to defendant Polk ten times. At the second penalty trial, a tape recording of one of Gregg's confessions, police testimony describing some of his other confessions, and police testimony describing Polk's confession to other crimes were admitted into evidence. Their testimony at the trial on the issue of guilt was also read into evidence.
Confessions are inadmissible if they were obtained when '(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he waived these rights.' (People v. Dorado, 62 A.C. 350, 365, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.) The confessions were admitted into evidence at the second penalty trial in violation of this rule.
All the confessions admitted into evidence were made after defendants had been arrested. All were obtained during several months of persistent police interrogation designed to elicit incriminating statements about many crimes. '(W)hen the officers have arrested the suspect and the officers have undertaken a process of interrogation that lends itself to eliciting incriminating statements, the accusatory or critical stage has been reached and the suspect is entitled to counsel.' (People v. Stewart, 62 A.C. 597, 603, 43 Cal.Rptr. 201, 204, 400 P.2d 97, 101.) Even if this rule applied only when the investigation focused on defendants as the perpetrators of the crime to which they confessed, most of their confessions must be excluded. The first confession regarding the Fambro murder, the tape recording of defendant Gregg on June 2, begins: 'George, in your own words * * * tell us as you told us before exactly what happened pertaining to this sailor boy.' Similarly, Sergeant Brooks testified that defendant Polk's first statement about the killing of 'The Hook' was obtained as follows: 'I told him we were pretty sure that Jesse Ferguson had been involved and I was fairly certain that he was with Jesse when 'The Hook' was killed, and I asked if he was, and he said, 'yes. " Once the accusatory stage is reached the accused is entitled to counsel. Any confession thereafter obtained must be excluded, and it is immaterial that the confession was different from what the police had expected. (Escobedo v. Illinois, 378 U.S. 478, 486, 84 S.Ct. 1758, 12 L.Ed.2d 977.)
There is no evidence that defendants were at any time advised of their right to counsel or of their absolute right to remain silent, and we cannot presume that they were so advised. (People v. Stewart, supra, 62 A.C. 597, 607, 43 Cal.Rptr. 201, 400 P.2d 97.) Accordingly, all the confessions should have been excluded. (People v. Dorado, 62 A.C. 350, 365, 42 Cal.Rptr. 169, 398 P.2d 361.)
The testimony of the psychiatrist describing defendants' admission to her and defendants' testimony at the trial on the issue of guilt that was read into evidence should also have been excluded. The psychiatrist interviewed each defendant twice at the request of the district attorney's office. She was thus an agent of the prosecution with no more right than any such agent to elicit admissions from defendants without their being informed of their rights. (See People v. Quinn, 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705.) The admissions of guilt of numerous crimes made to the psychiatrist should therefore have been excluded. (People v. Dorado, 62 A.C. 350, 365, 42 Cal.Rptr. 169, 398 P.2d 361.)
[44 Cal.Rptr. 780] [ 402 P.2d 852] Defendants' testimony at the trial on the issue of guilt was read into evidence in the second penalty trial. This testimony was the product of the confessions obtained in violation of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. At the trial on the issue of guilt, transcripts of some confessions, tape recordings of some, and police testimony describing others were admitted into evidence against both defendants. The defendants had no evidence but their own testimony to present on their own behalf. Thus their failure to take the stand would have made verdicts of guilty certain after the prosecution's introduction of the numerous confessions. Defendants therefore took the stand and again confessed, presumably hoping that the jury would find them guilty of a lesser offense than first degree murder. Had the confessions been excluded, there would have been so little evidence against them as to obviate any need to take the stand to answer it. Evidence obtained as a result of an involuntary confession must be excluded. (People v. Ditson, 57 Cal.2d 415, 439, 20 Cal.Rptr. 165, 369 P.2d 714.) Testimony impelled by the introduction of illegally obtained evidence cannot be used to support a conviction. (People v. Davis, 62 A.C. , 44 Cal.Rptr. 454, 402 P.2d 142; People v. Ibarra, 60 Cal.2d 460, 463, 34 Cal.Rptr. 863, 386 P.2d 487; People v. Dixon, 46 Cal.2d 456, 458, 296 P.2d 557; see also People v. Mickelson, 59 Cal.2d 448, 449, 30 Cal.Rptr. 18, 380 P.2d 658.) Consequently, testimony impelled by the introduction of a confession obtained in violation of Escobedo must also be excluded at any subsequent trial.
There is no merit in the Attorney General's contention that even if the confessions were admitted in violation of Escobedo, their admission at the second penalty trial was not prejudicial. '(A)ny 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. '' (People v. Hines, 61 Cal.2d 164, 169, 37 Cal.Rptr. 622, 626, 390 P.2d 398, 402.) The admission of the statements to the police, the statements to the psychiatrist, and the testimony at the trial on the issue of guilt, all of which reiterated defendants' participation in the Fambro killing and some of which disclosed other crimes that they had committed, was prejudicial error. The error was not rendered harmless by defendants' testimony at the second penalty trial (see Fahy v. Connecticut, 375 U.S. 89, 91, 84 S.Ct. 229, 11 L.Ed.2d 171), since that testimony was impelled, at least in part, by the introduction of the illegally obtained evidence. The prejudicial effect of the error as to Gregg is emphasized by the fact that the jury returned to the courtroom and requested that the instructions be given again, that Gregg's taperecorded statement be replayed, and that parts of his testimony be re-read. The tape-recorded statement was considerably more prejudicial to defendant Gregg than the trial testimony, since in it he confessed to a more active role in the Fambro killing, that of holding Fambro's arms during the shooting and amputation. Accordingly, the judgments as to penalty must be reversed.
It is contended that since the confessions admitted into evidence at the trial on the issue of guilt were obtained in violation of Dorado and Escobedo, the judgments of guilt must also be reversed. We do not agree with this contention. Judgments that became final before Escobedo, as in this case, will not be reopened on the ground that confessions were admitted in violation of Dorado and Escobedo. (In re Lopez, 62 A.C. 380, 388, 42 Cal.Rptr. 188, 398 P.2d 380.) Our affirmance of the judgments of guilt on the first appeal (People v. Polk, 61 Cal.2d 217, 234-235, 37 Cal.Rptr. 753, 390 P.2d 641) made the judgments on that issue final judgments subject to immediate review by the United States Supreme Court. (Brady v. Maryland, 373 U.S. 83, 85, 83 S.Ct. 1194, [44 Cal.Rptr. 781] [ 402 P.2d 853] 10 L.Ed.2d 215.) If it appeared that despite the right to seek immediate review, the United States Supreme Court would treat the issue of guilt as still open on a subsequent petition for certiorari, it would be pointless for us to refuse to reconsider it now. The United States Supreme Court has not held, however, that the finality of a judgment on the issue of guilt is not an adequate state ground for refusing to reopen that judgment to consider a federal claim based on Escobedo. We therefore conclude that an attack on the adjudication of guilt on this appeal is collateral and subject to the same limitation applicable to collateral attack by habeas corpus set forth in In re Lopez, 62 A.C. 380, 42 Cal.Rptr. 188, 398 P.2d 380.
Since the judgments as to penalty must be reversed, we proceed to other contentions that will arise on the retrial of that issue.
In any future penalty trial, defendants' testimony at the second penalty trial will be inadmissible. That testimony was impelled, at least in part, by the admission of evidence obtained in violation of Escobedo. Just as defendants' testimony at the trial on the issue of guilt was inadmissible in the second penalty trial, the testimony at that trial is inadmissible hereafter.
Defendants contend that the trial court erred in failing to grant them separate penalty trials. We agree that the inability of a jury properly to limit a defendant's confession only to him is one of the factors that the trial court should consider in exercising its discretion to grant separate trials. Since the circumstances of the new trial will differ from that of the last trial, however, we cannot say that the trial judge will improperly decide defendants' motion for separate trials. (See Pen.Code, s 1098.)
Defendants contend that the introduction of a photograph depicting Fambro's body lying in the grass at the bottom of an embankment and of the victim's bloody undershorts was prejudicial. The introduction of this evidence would be prejudicial if the danger of prejudice to the defendant outweighed its probative value. (People v. Henderson, 60 Cal.2d 482, 495, 35 Cal.Rptr. 77, 386 P.2d 677.) The most inflammatory photographs were properly excluded, and the trial court did not abuse its discretion in holding that the remaining photographs and the undrshorts were not unduly prejudicial. (People v. Arguello, 61 Cal.2d 210, 213, 37 Cal.Rptr. 601, 390 P.2d 377; People v. Lindsey, 56 Cal.2d 324, 328, 14 Cal.Rptr. 678, 363 P.2d 910.)
The district attorney argued to the jury that unless the death sentence was imposed, the defendants would get a 'free ride' for the killing of Fambro and for other crimes. The trial court correctly ruled that such an argument is improper. 'The district attorney * * * improperly discredited the Adult Authority by arguing that a life sentence for the murder would not increase defendant's punishment since he was already subject to a life term as the result of (other crimes), when it is clear that the sentencing authority would consider a first degree murder as a factor toward increasing the length of the total prison term.' (People v. Treloar, 61 Cal.2d 544, 549, 39 Cal.Rptr. 386, 390, 393 P.2d 698, 702.)
Defendants contend that since evidence of other crimes was introduced at the trial on the issue of penalty, an instruction that such crimes must be proved beyond a reasonable doubt should have been given. We agree with this contention. Generally, the standard of competency of the evidence at the trial on the issue of penalty is the same as the standard required at the trial on the issue of guilt. (People v. Hamilton, 60 Cal.2d 105, 129, 32 Cal.Rptr. 4, 383 P.2d 412.) Since evidence of other crimes, however, may have a particularly damaging impact on the jury's determination whether the defendant should be executed, we recognized in People v. Terry, 61 Cal.2d 137, 149 fn. 8, 37 Cal.Rptr. 605, 390 P.2d 381, [44 Cal.Rptr. 782] [ 402 P.2d 854] that there should be an exception to the normal standard of proof at the trial on the issue of penalty (People v. Purvis, 56 Cal.2d 93, 95, 13 Cal.Rptr. 801, 362 P.2d 713). Thus, even though at the trial on the issue of guilt the jury must only be convinced that it is more probable than not that the defendant committed other crimes before it may consider them (People v. Albertson, 23 Cal.2d 550, 579, 581, 145 P.2d 7), at the trial on the issue of penalty they must be convinced beyond a reasonable doubt.
Finally, defendants contend that the trial court must instruct on the legal considerations that the jury should take into account when deciding whether the penalty should be death or life imprisonment. We do not agree that such an instruction is compulsory. The Legislature has entrusted to the absolute discretion of the jury the awesome decision between life imprisonment and the death penalty in first degree murder cases. (Pen.Code, s 190; People v. Green, 47 Cal.2d 209, 218, 302 P.2d 307.) The Legislature has thus indicated its belief that jurors understand the factors that are relevant to such a decision. Recitation of such factors by the trial court is therefore not essential. The trial court may, however, properly aid the jury by stating the kinds of factors that may be considered, thereby setting the tone for the jury's deliberation. (See People v. Friend, 47 Cal.2d 749, 767-768, 306 P.2d 463; Model Penal Code, s 210.6 (Proposed Official Draft 1962).) In this case, the trial court erroneously instructed that the jury cannot be influenced by 'pity for the defendant' or 'sympathy' for him. (CALJIC No. 1.) Although appropriate on the issue of guilt, this instruction improperly eliminates factors that a jury may consider in fixing the punishment. (See People v. Friend, supra, 47 Cal.2d 749, 767-768, 306 P.2d 463.)
Since other questions raised are not likely to arise on retrial, we need not decide them here.
The judgments imposing the death penalty are reversed and the causes are remanded for retrial and redetermination of the question of penalty only.
PETERS, TOBRINER, and PEEK, JJ., concur.
BURKE, Justice (dissenting).
I dissent from the reversal of the judgments imposing the death penalty upon these defendants.
Under the mandate of Penal Code section 190.1, a jury (for the second time) has reviewed, among other things, the circumstances surrounding the brutal murder of which defendants were convicted, and the background and history of defendants for the determination of the proper penalty. The review included evidence of the defendants' participation in a series of other crimes which were also marked by extreme brutality and by a complete lack of compassion or consideration for their victims. Faced with such a record, these juries, in the discharge of the solemn obligation imposed upon them by the legislative policy of this state of determining whether in their absolute discretion the penalty should be life imprisonment or death, imposed the maximum penalty.
In the face of the evidence it is inconceivable that the jury would have reached a result more favorable to the defendants had the errors complained of at the penalty trial not taken place. Such being the case, this court is precluded by our Constitution from reversing and remanding for a third trial on the issue of penalty. (Art. VI, s 4 1/2.)
The majority opinion holds that it was error for the trial court not to have instructed the jury that, as to the other crimes concerning which evidence was introduced, it must be proved beyond a reasonable doubt [402 P.2d 855] that the defendants committed them. The standard of competency of evidence at the trial on the issue of penalty has been declared by this court to be the same as at the trial on the issue of guilt. (People v. Hamilton, 60 Cal.2d 105, 129-131, 32 Cal.Rptr. 4, 383 P.2d 412.) At the guilt phase all that is required is that the proof [44 Cal.Rptr. 783] that the defendants committed such other crimes 'be sufficient to arouse more than mere suspicion; it must afford 'substantial evidence' that the prior offense(s were) in fact committed by the defendant(s). (Citations.)' (People v. Albertson, 23 Cal.2d 550, 579, 145 P.2d 7, 22; People v. Rosoto, 58 Cal.2d 304, 331, 23 Cal.Rptr. 779, 373 P.2d 867.)
In the instant case the majority have decreed that solely because 'evidence of other crimes, * * * may have a particularly damaging impact on the jury's determination whether the defendant(s) should be executed * * * there should be an exception to the normal standard of proof at the trial on the issue of penalty.' They declare that the new standard should be that the other crimes be proved beyond a reasonable doubt. This holding is directly contrary to the opinion of this court in People v. Purvis, 56 Cal.2d 93, 95-96, 13 Cal.Rptr. 801, 362 P.2d 713, and to other cases.
In Purvis in a similar penalty trial the defendant had requested the trial court to instruct the jury that 'in exercising its discretion as to the appropriate penalty it was to consider only facts proved beyond a reasonable doubt. * * * He also requested the court to instruct the jury that if it entertained a reasonable doubt as to which of the penalties to impose, the lesser penalty should be given.' This court not only held unanimously that the trial 'court properly refused to give the requested instructions' but further declared (p. 96 of 56 Cal.2d, p. 803 of 13 Cal.Rptr., p. 715 of 362 P.2d), 'The jury has absolute discretion in fixing the penalty and is not required to prefer one penalty over another. (Citations.) In evaluating the evidence the jury was bound by the instructions given as to the limited purpose for which certain evidence was admitted, but beyond that it could draw its own inferences, determine the probative weight of evidence, and select the appropriate penalty on the basis of its evaluation of the evidence. (Citations)'
Thus in this case, as in Purvis, the fact that the death penalty is involved presents no adequate basis for imposing a higher standard of proof as to prior offenses at the trial on the issue of penalty than is required for this issue of guilt.
The majority rely solely upon dictum found in People v. Terry, 61 Cal.2d 137, 149, 37 Cal.Rptr. 605, 390 P.2d 381, footnote 8. Terry cited no authority in support of the dictum and the dictum appears to be inconsistent with the further statement in the same footnote that 'in the penalty trial the same safeguards should be accorded a defendant as those which protect him in the trial in which guilt is established.' (Italics added.)
In People v. Friend, 47 Cal.2d 749, 767, 306 P.2d 463, 474, cited by the majority in reference to factors which a jury may consider in fixing the punishment for first degree murder at life imprisonment or death, this court warned 'that insofar as selecting the penalty is concerned (as between the two alternatives) the law does not itself prescribe, nor authorize the court to innovate, any rule circumscribing the exercise of (the jury's) discretion, but, rather, commits the whole matter of its exercise to the judgment and the consciences of the jury; * * *.' (Italics added.) This admonition the majority now disregard by the innovation of a special rule to govern the jury in its consideration of other crimes asserted to have been committed by the defendants.
I agree with the majority's conclusion that the judgments of guilt which became final before Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, do not require reversal as a result of the admission into evidence at the trial on guilt of statements inadmissible under that decision. I would, however, as indicated, affirm the judgments imposing the death penalty.
McCOMB and SCHAUER, JJ., concur.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
Rehearing granted; MOSK, J., not participating.