In Re Seiterle

456 P.2d 129, 71 Cal. 2d 698, 78 Cal. Rptr. 857, 1969 Cal. LEXIS 281

• Court: California Supreme Court
• Decided: July 10, 1969
• Docket: Crim. 12183
• Status: Published

Opinions

TOBRINER, J.

In this habeas corpus application, petitioner David Jacob Seiterle, presently under sentence of death after conviction of two counts of first degree murder and two counts of kidnaping for the purpose of robbery with-bodily harm,¹ 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 a venireman who was conscientiously opposed to capital punishment. The voir dire examination of the prospective jurors reveals that such an error occurred. Accordingly, under compulsion of Wither-spoon the judgment must be reversed insofar us it relates to penalty.

The following colloquy transpired between the trial court and prospective juror Mrs. Bernice Prestwood:

“Q. Is there anything about the nature of this case, Mrs. Prestwood, that would prevent your serving fairly and impartially to the defendant as well as to the People of the State of California?

“A. Yes.

‘ ‘ Q. And what is that, Mrs. Prestwood ?

“A. I don’t agree with the death penalty.

“Q. Do you have such conscientious scruples against the death penalty and its imposition that you feel you could not serve fairly and impartially to the People of the State of California as well as to the defendant if selected in this case ?

“A. Yes.

“Q. And nothing that you have heard during the last two or three days [i.e., the period during which other veniremen had been questioned] has changed that in any way ?

“A. No.

‘ ‘ Q. And you feel nothing would 1

“A. No.”

Defense counsel stated that he had no questions, and the court granted a challenge for cause by the prosecutor.

We agree with petitioner that the trial court’s exclusion for cause of Mrs. Prestwood violated the rule of Wither-spoon because her statements 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 ... . .” (Witherspoon v. Illinois, supra, 391 U.S. at p. 522 & fn. 21 [20 L.Ed.2d at p. 785].)

Mrs. Prestwood initially stated, “I don’t agree with the death penalty.” We have consistently held that such general objections to capital punishment cannot properly serve as the basis for a challenge for cause under Witherspoon. (In re Arguello (1969) ante, pp. 13, 14 [76 Cal.Rptr. 633, 452 P.2d 921]; People v. Terry (1969) 70 Cal.2d 410, 416-417 [75 Cal.Rptr. 199, 450 P.2d 591]; In re Anderson (1968) 69 Cal.2d 613, 617-618 [73 Cal.Rptr. 21, 447 P.2d 117].)

Mrs. Prestwood next answered “Yes” to the question, “Do you have such conscientious scruples against the death penalty and its imposition that you feel you could not serve fairly and impartially to the People of the State of California as well as to the defendant if selected in this case 1 ” We have consistently held that conscientious scruples which affect merely a prospective juror’s ability to serve fairly and impartially at the penalty phase of a capital case cannot properly sustain a challenge for cause under Witherspoon. (In re Eli (1969) ante, pp. 214, 215-216 [77 Cal.Rptr. 665, 454 P.2d 337] ; People v. Osuna (1969) 70 Cal.2d 759, 769 [76 Cal.Rptr. 462, 452 P.2d 678]; People v. Risenhoover (1968) 70 Cal.2d 39, 55 [73 Cal.Rptr. 533, 447 P.2d 925] ; In re Anderson, supra, 69 Cal.2d 613, 617-618.)

Under the authority of Witherspoon, we hold that the trial court in the present case committed error in excusing venireman Prestwood for cause, and that the judgment imposing the death penalty must be reversed insofar as it relates to penalty.

Despite the manifest error in excluding this prospective juror for cause, the People seek to “cure” the defect by reference to the entire voir dire examination which preceded the colloquy between the trial court and Mrs. Prestwood. The Attorney General argues that the judge had consistently applied the standard set forth in Witherspoon in excusing jurors who opposed the death penalty; and furthermore, that Mrs. Prestwood’s statement that nothing she had heard during the preceding voir dire examination of other jurors had changed her opinion on the subject constitutes an unambiguous indication that she would automatically vote against the imposition of capital punishment. Such a contention rests upon unacceptable assumptions and non sequitorial logic.

First, in a ease such as the present which was tried before the United States Supreme Court announced its decision in Witherspoon, a trial court would have applied the correct Witherspoon standards only fortuitously since “ [i ] t is obvious that Witherspoon made a material change in the law in this state.” (In re Anderson, supra, 69 Cal.2d 613, 619.) Assuming that the trial court in the instant case did apply the correct standards in the voir dire preceding that of Mrs. Prestwood, however, that fact cannot excuse the court from applying the correct standard to Mrs. Prestwood herself. ¥e recently rejected the suggestion that we adopt a. rule of harmless error for violations of Witherspoon in the case of In re Arguello, supra, ante, pp. 13, 15-16. Nothing in the present case casts any doubt upon the soundness of our conclusion in Arguello.

Second, Mrs. Prestwood’s affirmance that nothing she had heard during the previous voir dire examination of other veniremen had changed her mind does not thereby transform her generalized objections to capital punishment into a statement that she could never vote for the death penalty under any circumstances. She merely stated that nothing had affected her attitude to the effect that: (1) she did not agree with the death penalty; and (2) her scruples would prevent her from being fair and impartial to the People as well as the defendant. We are still faced by the fact that these two statements do not constitute a proper ground upon which to excuse Mrs. Prestwood under the standards set forth in Witherspoon.

Third, since the trial court asked Mrs. Prestwood merely whether she could serve fairly and impartially to both the People and the defendant and not whether she thought she was qualified to serve as a juror in this case, the reference by the trial court to what ‘ ‘ you have heard during the last two or three days” does not incorporate the prior correct rulings on challenges for cause into the specific examination of Mrs. Prestwood. The fact remains that the trial court asked her a question to which an affirmative answer could not stand as a basis for a challenge for cause under Witherspoon. If the court had asked her, “After hearing the previous voir dire with respect to jurors’ opposition to the death penalty and after observing which of those jurors who expressed scruples concerning capital punishment I excused for cause, do you have such conscientious scruples which would disqualify you from participating in this trial,”² then and only then would we have any reason to look back and seek to determine whether the prior voir dire made it, clear to the particular juror that the only basis for a challenge for cause was an opinion which required its holder automatically to vote against the imposition of capital punishment.

In the present case, the trial court did not ask Mrs. Prest-wood to decide if she could properly serve as a juror; it simply asked whether she could serve fairly and impartially; she said that she could not do so and that nothing she had heard could change her opinion that she could not serve fairly and impartially. She indicated nothing about whether she could subordinate her views on capital punishment and vote for the death penalty; she did not state that she could never vote for the death penalty in any case. As such her voir dire examination provides no basis to sustain the challenge for cause.

The case of People v. Varnum (1969) 70 Cal.2d 480, [75 Cal.Rptr. 161, 450 P.2d 553], provides no authority for the Attorney General’s position. In Varmim we were faced with the venireman’s statement “that under no circumstances in a proper case would she ever vote for the death penalty” (People v. Varnum, supra, 70 Cal.2d 480, 494); we said, “. . . neither the words ‘in a proper case’ nor any other words, taken alone, can be seized upon as a touchstone by which to determine the quality of the juror under Witherspoon(P. 493.) Consequently we searched the record to determine the meaning theretofore attributed to the ambiguous words “in a proper case,” concluding that “Our examination of the record satisfies us that in responding to the words ‘in a proper case’ Mrs. Bronsal clearly understood that it was within her discretion to determine what was a proper case. ’ ’ (P. 494-495.) The uncertain terms thus served as the launching pad for the journey into the context of the entire voir dire examination.

The necessity for this excursion arises because of the ambiguity in the particular venireman’s examination; we seek to supply meaning where there would otherwise appear to be none. (Id.) In the present case, the particular colloquy between the trial court and Mrs. Prestwood contains no ambiguity. The questions by the court are clear, the prospective juror’s responses unequivocal. The inquiry into the previous voir -dire examination is neither appropriate nor, as explained supra, can such an inquiry in the present case serve to change the obvious meaning of Mrs. Prestwood’s statements and answers.³ And these answers cannot properly sustain the challenge for cause which the trial court granted in the present case.

The .writ is granted as to the penalty trial. The remittitur issued in People v. Seiterle, Crim. 9450, is recalled and the judgment imposing the death penalty is reversed insofar as it relates to penalty. In all other respects the judgment is affirmed.

Traynor, C. J., Peters, J., and Sullivan, J., concurred.

1 For prior proceedings see People v. Seiterle (1961) 56 Cal.2d 320 [14 Cal.Rptr. 681, 363 P.2d 9131; Seiterle v. Superior Court (1962) 57 Cal.2d 397 [20 Cal.Rptr. 1, 369 P.2d 697]; People v. Seiterle (1963) 59 Cal.2d 703 [31 Cal.Rptr. 67, 381 P.2d 9471, cert. den. 375 U.S. 887 [11 L.Ed.2d 116, 84 S.Ct. 163]; In re Seiterle (1964) 61 Cal.2d 651 [39 Cal.Rptr. 716, 394 P.2d 556], cert. den. (1965) 379 U.S. 992 [13 L.Ed.2d 613, 85 S.Ct. 7101; People v. Seiterle (1966) 65 Cal.2d 333 [54 Cal.Rptr. 745, 420 P.2d 217], cert. den. (1967) 387 U.S. 912 [18 L.Ed.2d 633, 87 S.Ct. 1699].

2 In stating this hypothetical question, wo do not sanction its actual use. In fact, we believe the trial court, not the venireman, should judge the qualifications of jurors, especially with respect to opposition to capital punishment.

3 Witherspoon requires that “ [u]nless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.” (391 U.S. at p. 516, fn. 9 [20 L.Ed.2d at p. 871].) This mandate indicates that the venireman himself must state unequivocally his inability to vote for the death penalty in any case; the approach suggested by the Attorney General would violate the language of Witherspoon by allowing statements from other veniremen and questions and rulings by the trial court on other challenges for cause to stand as the equivalent of a statement by the particular venireman himself. Mrs. Prestwood’s unambiguous statements of opposition to capital punishment fall short of that degree of opposition which would justify a challenge for cause under Witherspoon. Without a further statement by Mrs. Prestwood herself that she could nevqr vote to impose the death penalty, we cannot assume and so conclude that such is her position.