People v. Mabry

455 P.2d 759, 71 Cal. 2d 430, 78 Cal. Rptr. 655, 1969 Cal. LEXIS 266

• Court: California Supreme Court
• Decided: June 26, 1969
• Docket: Crim. 11510
• Status: Published

Opinions

BURKE, J.

In 1967 defendant was indicted for the 1954 murder of Police Officer Francis Rea. A jury found him guilty of first degree murder and fixed the penalty at death. Motions for a new trial and for reduction of the penalty were denied, and defendant’s automatic appeal is now before us. (Pen. Code, § 1239, subd. (b).)

Defendant contends (1) the court erred in refusing to give instructions on manslaughter and second degree .murder and committed other error in instructing the jury; (2) certain evidence was improperly admitted; (3) defendant had ineffective representation by counsel at the trial; (4) the death penalty as applied is unconstitutional; and (5) the court improperly excluded for cause certain veniremen. We have concluded that none of the contentions can be upheld and that the judgment should be affirmed.

Shortly after 8 p.m. on January 2, 1954, Police Officers Dean Jones and Joe Marvelli received a radio call regarding a burglary at the Acme Warehouse in North Sacramento and proceeded there. About the same time the decedent Francis Rea, and his partner, Percy Gassaway, also received a call directing them to the- same warehouse. When Rea and Gass-away turned onto Douglas Avenue one block east of the warehouse, Gassaway saw a man carrying a container or suitcase running from the west across the intersection of Douglas Avenue and an alley thát was adjacent to the warehouse. G-ass-awa.y turned into the alley, and Rea directed his attention to a man fleeing about a half block-south of where Gassaway last observed the suspect. Rea left the car and pursued the man on foot. Gassaway drove through the alley and next saw the suspect over a block further south at the intersection of Douglas Avenue and El Monte Avenue. He radioed the other police car for assistance, the suspect fired at him and returned around the corner, and Gassaway then heard more shots.

Officers Jones and Marvelli, who responded to Gassaway’s call, found Rea lying unconscious near where Gassaway last saw the suspect. The following day Rea died. According to the autopsy surgeon, the cause of death was a gunshot wound that penetrated the head, and the lethal bullet probably was of .22 caliber.

The morning after the shooting a .22 caliber gun was found in the yard of a house at the intersection of Douglas Avenue and El Monte Avenue, and a pry bar wa,s discovered a short distance farther north in the area of the path where the suspect had fled. There was circumstantial evidence that the pry bar was used to gain entrance to the Acme Warehouse and also to Livingston Cement Company and the Bowman residence, both of which were in the immediate vicinity of the Acme Warehouse. A bottle of whiskey was missing from the Livingston Cement Company, and in the Bowman residence the police discovered a similar bottle, which had not been there when the Bowmans left. Jewelry taken from the Bowman residence was discovered at a location between the places the pry bar and gun were found. Othér jewelry belonging to' the Bowmans was discovered in a corporation yard east of the Acme Warehouse.

On the date of the crime defendant lived in Sacramento with a woman, her son Steven Colvin, and her daughter Jerry. They left Sacramento two days after the shooting. At the time of the trial the woman was named Mrs. Jean Hodges, and the daughter had become Mrs. Jerry Long.

In March 1967, over 13 years after the crime, Mrs. Hodges contacted the district attorney and gave a report concerning the crime that implicated defendant.

At the trial Mrs. Hodges testified as follows: On January 2, 1954/defendant told her he was going some place to try to get some money or to commit a burglary and also mentioned selling some guns, and she agreed to go with him. They drove a ways and then parked. [The location she pointed out to officers as the place they parked was near Douglas Avenue in the immediate vicinity of where Gassaway saw the suspect fleeing.] Defendant took with him a pry bar that looked like the on$ found by the police. She lay down in the car but sat up when she heard something about 45 minutes or an hour after defendant left the car. She then saw defendant running crouched down and a policeman with a shotgun pursuing him. The policeman shot the gun, she thinks she heard more shots, and she then left. The next morning defendant came home and told her “he shot a policeman.” He also told her he had been in a residence and in a warehouse.

Mrs. Jerry Long testified that before defendant left home on the night the policeman was shot she heard him tell her mother “to drive away if there was any trouble” and that after defendant came home the next day she heard him say that “he had shot a policeman.” And Colvin testified that after they left Sacramento he overheard defendant make various threats such as that if Mrs. Hodges said anything about what happened he would ‘ ‘ take care of all of us. ”

Colvin aided the police in obtaining a tape recording of a conversation between him and defendant, the admissibility of which is discussed later herein. In the conversation Colvin told defendant that he had heard a rumor about defendant and “[s]omething about killing a policeman” and Colvin asked defendant “. . . Is this about that up in Sacramento?” Defendant replied that he did not know. Thereafter during the conversation defendant made various admissions. For example, he stated, “. . . You just never lived in Sacramento ... it’s been what, this is ’67, ’54, that’s thirteen years . . . you was only a kid then, see.” He also told C'olvin to find out from Mrs. Hodges if she told her present husband ‘1 about Sacramento, and no matter what she told him she better straighten it out . . . because if I go she’s going. She’ll sniff the pill with me.” He further stated that Mrs. Hodges is “just as guilty as I am. She was driving the car that night and . . . she had a gun .... in the . . . seat of the car. I’m the one that came and got her out, I got her away from there. I told her, if anything happens, split. I got away. If she’d have set [sic] there she’d have been in jail. . . . We’d have both been in jail for that matter. ...”

Defendant, who did not testify at the trial, introduced evidence of bias against him on the part of Mrs. Hodges and her daughter and son. He also presented proof that several of the matters Mrs. Hodges testified to regarding the crime had been reported in newspapers, and he showed some inconsistencies in. her accounts, such as the place where she had been parked on the night of the crime.

The parties stipulated that evidence admitted at the guilt trial might be considered-by the jury at the penalty trial. In addition at the penalty trial the prosecution introduced proof that defendant was received in prison in 1936 for car theft and. first degree robbery, was paroled in 1940 but was returned to prison later that year for first degree .robbery, was paroled in 1944 but was returned to prison in 1947 for first degree robbery, escaped in 1949 but was returned to prison later that year with an additional prison commitment for escape, was paroled in 1952 but was returned to prison in April 1954 for forgery, was paroled in 1958 but was returned to prison in 1960 for receiving stolen property, escaped in 1961 but was returned to prison in 1962, and was paroled in 1965.

A parole agent, called as a. defense witness, testified that defendant was under his supervision from the fall of 1965 to February 1967 and that all his reports regarding defendant were satisfactory. A businessman, also called as a defense witness, testified that defendant worked for him from January 1966 through March 1967 and that he considered defendant an industrious and honest employee. The defense also introduced other evidence, such as testimony by Mrs. Hodges, that before defendant’s 1961 escape she told him that the family was destitute and that while at large he contributed to the family’s support.

Asserted Errors in Instructions

The jury was instructed in part that in order to convict defendant of first degree murder they must find that defendant killed Rea. while in the commission of a burglary and that if they find that defendant did not commit or attempt to commit a burglary on the night in question they must acquit him. The court refused to give instructions requested by defendant on second degree murder and manslaughter, and defendant claims that the court thereby erred.

It is the duty of the court to instruct on every theory of the ease finding support in the evidence. (People v. Modesto, 59 Cal.2d 722, 727-730 [31 Cal.Rptr. 225, 382 P.2d 33]; People v. Carmen, 36 Cal.2d 768, 773 [228 P.2d 281]; see People v. Lessard, 58 Cal.2d 447, 452 [25 Cal.Rptr. 78, 375 P.2d 46].) Here the theory defendant advanced in the trial court in support of the requested iustructious was that there “is evidence [from] which it can be inferred . . . that the burglar was not the killer” and presumably evidence that the killing was a lesser included offense. However, the evidence defendant pointed to clearly did not tend to show that the burglar was not the killer.¹ On appeal defendant points solely to Mrs. Dorothy Bowman’s testimony that “Somebody had been staying there [i.e. in her kitchen or house] and had been using the pots and pans and dishes” and to testimony by N. J. Jensen, who lived,in the neighborhood of the crime, that he told the police that an intruder he encountered in his yard shortly after the shooting “looked like a Mexican.” The Attorney General, however, correctly states that this evidence has no tendency to show that the burglar was not the killer, that “ [a]t best, it is wholly neutral on that issue and may be said to show that the killer was a Mexican who stayed some time at the Bowman residence— and therefore indicating that [defendant] who was in the area for no more than an hour, is entirely innocent. ’ ’

Where the evidence points indisputably to a homicide in the perpetration of, or attempt to perpetrate, a burglary or one of the other felonies enumerated in Penal Code section 189 it is proper for the court to advise the jury that the defendant either is innocent or is guilty of murder in the first degree. (People v. Turville, 51 Cal.2d 620, 633 [335 P.2d 678]; People v. Riser, 47 Cal.2d 566, 581 [305 P.2d 1]; People v. Rupp, 41 Cal.2d 371, 382 [260 P.2d 1]; People v. Sanford, 33 Cal.2d 590, 595 [203 P.2d 534]; People v. Perkins, 8 Cal.2d 502, 516 [66 P.2d 631].) The instant case comes within that rule.

There is no merit to defendant’s contention that the court committed prejudicial error in giving two sets of instructions at the guilt trial and thereby assertedly confusing the. jury. At the guilt trial the court, after giving instructions, recalled' the jury and stated that the jury had been erroneously instructed, that the court would again give instructions and that the jury should follow the instructions that would' be given and disregard the prior ones. The instructions thereafter given were substantially the same as the prior ones except that the court omitted an instruction defining premeditation and deliberation and gave certain additional instructions.² The court thereafter again recalled the jury and made it even clearer that premeditation and deliberation were not matters for the jury’s consideration, that in order to convict defendant of first degree murder the jury must find that he committed the killing while committing or attempting to commit a burglary, and that if the jury does not so find they must acquit him. From the foregoing it is apparent that defendant was not, harmed by the jury’s having heard more than one set of instructions.

Asserted Error in Admission of Evidence

Defendant contends that it was error to admit Mrs. Hodges’ testimony that hé told her he shot a policeman because the receipt of the testimony assertedly violated the privilege for confidential marital communications (Evid. Code, § 980). However, no objection on that ground was made at the trial, and defendant may not now claim for the first time that the admission of the testimony violated that privilege. (Evid. Code, § 912, subd. (a); People v. Kroeger, 61 Cal.2d 236, 246 [37 Cal.Rptr. 593, 390 P.2d 369].) Furthermore, even had a timely objection been made, Mrs. Hodges’ testimony would have been admissible because her uncontradicted testimony shows that she married defendant before a divorce she was obtaining from her husband became final and that her marriage to defendant was void and later annulled. Since the marriage of defendant and Mrs. Hodges was illegal and void (see Civ. Code, § 61), the confidential marital communications privilege was inapplicable. (People v. Keller, 166 Cal.App.2d 419, 423-424 [332 P.2d 174]; People v. Glab, 13 Cal.App.2d 528, 535 [57 P.2d 588]; see 8 Wigmore on Evidence (1961) §2335, pp. 647-648- 97 C.J.S., Witnesses, §267, pp. 765-766.) As Wigmore explains, “In such cases the policy of the privilege does not apply . . . since the relation is not one in which the law wishes to foster confidence. ...” (See 8 Wigmore on Evidence, supra, § 2835, p. 647.) In People v. Godines, 17 Cal.App.2d 721, 727 [62 P.2d 787], it was held that a confidential marital communication before an annulment was privileged, but there the marriage apparently was voidable rather than illegal and void.

The tape-recorded conversation between defendant and Colvin was admitted over an objection based on Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], and Escobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and defendant contends that the court thereby erred. We do not agree. Miranda prohibits use by the prosecution of “statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination” (384 U.S. at p. 444 [16 L.Ed.2d at p. 706]), and Escobedo similarly is concerned with statements elicited by the police during interrogation where, among other things, the suspect is in custody (People v. Ing, 65 Cal.2d 603, 613 [55 Cal.Rptr. 902, 422 P.2d 590]; Ballard v. Superior Court, 64 Cal.2d 159, 170 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416]). Miranda states (at p. 444 [16 L.Ed.2d at p. 706]) that “ [b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Under the majority opinion in People v. Arnold, 66 Cal.2d 438, 448 [58 Cal.Rptr. 115, 426 P.2d 515], “custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.”

Here it appears that defendant was not in custody, as thus defined, at the time of the tape-recorded conversation. The conversation, which was of about 45 minutes duration, occurred in defendant’s car, which was parked in front of his house. The police, who several weeks earlier had received information from Mrs. Hodges and her children implicating defendant in the murder, had told Colvin they would like him to obtain a confession from defendant and had attached an electronic device to Colvin’s person. That device transmitted Colvin’s conversation with defendant to a nearby vehicle, where it was recorded by Officer Burt. Officer Jernigan was in a second nearby vehicle. After the conversation Jernigan picked up Colvin about a block from defendant’s home, and they drove several miles to the airport where they met Burt. Burt played the recording to Jernigan, two other officers, and Colvin. Shortly thereafter defendant was arrested for the murder and later was indicted for that crime.

Defendant further urges on appeal, as he did in the trial court, that the tape-recorded conversation was inadmissible under Massiah v. United States, 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199], Massiah held (at p. 206 [12 L.Ed.2d at p. 250]) that the defendant was denied his right to counsel “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. ’ ’ Here, however, the conversation preceded defendant’s indictment. There is no merit to his argument that, since the police had probable cause to arrest him and charge him with the murder at the time of the conversation, he was the “same as under indictment.” (Cf. Hoffa v. United States, 385 U.S. 293, 309-310 [17 L.Ed.2d 374, 386-387, 87 S.Ct. 408].)

Defendant further contends on appeal that the tape recording was inadmissible because recording the conversation violated his rights under the Fourth Amendment to be secure against unreasonable searches and seizures. A specific objection on that ground was not made at the trial,³ and defendant has shown no special circumstances that would justify our departure from the ordinary rule that errors not challenged at trial cannot serve as grounds for reversal on appeal. (People v. Robinson, 62 Cal.2d 889, 894 [44 Cal.Rptr. 762, 402 P.2d 834].) Furthermore, as we shall see, even had a timely objection on that ground been made the tape recording would have been admissible.

In Hoffa v. United States, supra, 385 U.S. 293, 302 [17 L.Ed.2d at p. 382], the Supreme Court stated, “Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Indeed, the Court unanimously rejected that very contention less than four years ago in Lopez v. United States, 373 U.S. 427 [10 L.Ed.2d 462, 83 S.Ct. 1381].” Accordingly testimony by Colvin concerning the conversation did not violate defendant’s rights under the Fourth Amendment (cf. Hoffa v. United States, supra, at pp. 300-303 [17 L.Ed.2d at pp. 381-382]), made applicable to the states by the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 655-657 [6 L.Ed.2d 1081, 1090-1091, 81 S.Ct. 1684, 84 A.L.R.2d 933]).

Nor did the receipt of the tape recording violate those rights. (Cf. Lopez v. United States, supra, 373 U.S. 427; Dancy v. United States, 390 F.2d 370, 371; United States v. Knohl, 379 F.2d 427, 443 [cert. den. 389 U.S. 973 [19 L.Ed.2d 465, 88 S.Ct. 472]]; United States ex rel. Molinas v. Mancusi, 370 F.2d 601, 602-603 [cert. den. 386 U.S. 984 [18 L.Ed.2d 232, 87 S.Ct. 1285]]; People v. Ragen, 262 Cal.App.2d 392, 397-398 [68 Cal.Rptr. 700] [cert. den. 393 U.S. 1000 [21 L.Ed.2d 465, 89 S.Ct. 489]].) Here, as in Lopez, supra (at p. 439 [10 L.Ed.2d at p. 470]), “The Government did not use an electronic device to listen in on 'conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which” one of the participants was working for, or cooperating with, the government and which that participant was fully entitled to disclose. Lopez further stated (at p. 439 [10 L.Ed.2d at p. 471]), “We think the risk that petitioner took in oífering a bribe to [the government agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording. ’ ’ This principle is also applicable here.

Defendant’s reliance upon Katz v. United States, 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507], is misplaced. “Katz is to be applied only to cases in which the prosecution seeks to introduce the fruits of electronic surveillance conducted after December 18, 1967” (Desist v. United States, 394 U.S. 244 [22 L.Ed.2d 248, 258, 89 S.Ct. 1030]), and here the tape recording was made before that date.

Asserted Ineffective Aid of Counsel

In support of his claim that he had ineffective aid of counsel in the trial court, defendant first complains of an asserted lack of adequate consultation with the public defender who represented him during most of the trial.⁴ Defendant made the same complaint in the trial court and during several discussions regarding the complaint indicated that the public defender talked to him for only about an hour before trial and that had there been additional consultation the public defender would have been aware of facts which would have extended the cross-examination of prosecution witnesses and which might have necessitated calling additional defense witnesses. The public defender stated that he saw defendant at least three times before trial and was furnished with reports by his investigator who spent many hours with defendant before trial, that he was aware of the witnesses defendant wanted to call, and that in his judgment it would not be beneficial to defendant to call them or to further cross-examine the prosecution witnesses. On one occasion the trial court adjourned the proceedings to allow additional consultation on the subject, and the public defender later indicated that nothing new had been disclosed. Defendant and the public defender also conferred during recesses at the trial.

An accused’s right to counsel, of course, includes the right to consult with his counsel. (Powell v. Alabama, 287 U.S. 45 [77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527]; Cornell v. Superior Court, 52 Cal.2d 99, 102 [338 P.2d 447, 72 A.D.R.2d 1116]; People v. Miller, 185 Cal.App.2d 59, 77 [8 Cal.Rptr. 91].) Here it does not appear that defendant was denied that right. Rather it appears that defendant and the public defender differed on trial tactics and that the judgment of the public defender was fully vindicated when defendant, after discharging the public defender, recross-examined several prosecution witnesses and indicated the nature of the testimony he expected to elicit from other witnesses who were subpoenaed at his request. (The latter witnesses did not testify because defendant decided he was unable to continue representing' himself, and the public defender, who was reappointed, did not want to call them.) Nothing substantially helpful to the defense was presented nor does it appear would have been presented had the additional witnesses been called, and some facts prejudicial to defendant were brought out on the recross-examination such as that he was an ex-convict and had escaped from the Deuel Vocational Institution.

Defendant next complains that he had ineffective aid of counsel because the public defender in his argument to the jury at the guilt trial stated that defendant admitted he was in the area at the time of the crime. Defendant asserts that there is no evidence of any such admission. However, in the tape-recorded conversation he made the statements previously recited from which an inference is clearly warranted that he was present at the scene of the crime. Rather than electing to ignore this evidence it appears that the public defender as a matter or trial tactics took the position “ [l]et’s look at the evidence and let the chips fall where they may” — that defendant admitted he was in the area at the time of the crime but never admitted that he. shot the victim or committed the burglaries.

Defendant further asserts he had ineffective aid of counsel because the public defender did not object to Mrs. Hodge’s testimony on the-ground that it violated the privilege for confidential marital communications. However, as we have seen, the privilege was inapplicable.

At the trial defendant was represented by a public defender who, according to the trial court, “has tried many murder eases” and is a “very able, responsible, and experienced lawyer.” In our opinion defendant’s claim that he had ineffective aid of counsel cannot be upheld.

Constitutionality of the Death Penalty

Defendant incorporates by reference the arguments made in In re Anderson, 69 Cal.2d 613 [72 Cal.Rptr. 21, 447 P.2d 1006], challenging the constitutionality of the death penalty. For the reasons stated in the Anderson opinion the arguments lack merit.

Asserted Error in Excluding Veniremen Opposed to Capital Punishment

Thirteen veniremen were excused for cause on the basis of their reservations concerning the death penalty. Defendant asserts that most of them did not state they had ‘such conscientious opinions as would preclude [their] finding the defendant guilty,” and he argues that they were therefore erroneously excluded because under Penal Code section 1074, subdivision 8, a challenge for implied bias does not exist if the venireman’s assessment" of punishment alone would be affected by his conscientious opinions regarding the death penalty.⁵ The argument is devoid of merit. (People v. Gonzales, 66 Cal.2d 482, 497-499 [58 Cal.Rptr. 361, 426 P.2d 929]; People v. Riser, supra, 47 Cal.2d 566, 575-576.)

The question remains whether the jury selection procedure comported with Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], The record discloses that under Witherspoon it was not error to exclude the 13 veniremen since the responses of each of them, when considered in their entirety, made it “unmistakably clear (1) that [he] would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial ... or (2) that [his] attitude toward the death penalty would prevent [him] from making an impartial decision as to the defendant’s guilt” (391 U.S. at p. 522, fn. 21 [20 L.Ed.2d at p. 785]).⁶

Conclusion

.The evidence is amply sufficient to'support the verdict, and •no claim is made to the contrary.

The judgment is affirmed.

Traynor, C. J., MeComb, J., Tobriner, J., and Spllivan, J., concurred.

1 Defendant pointed to the following evidence: An encounter by N. J. Jensen, who lived in the neighborhood of the crime, with an intruder in his yard, which is east of Douglas Avenue, shortly after the crime; the discovery of loot from the Bowman residence in the corporation yard, which is west of Douglas Avenue; the discovery of other loot from the Bowman residence and the pry bar north of Bassetlaw South and finding the gun south of Bassetlaw South; the absence of loot south of Bassetlaw South; and Mrs. Bowman’s description of her house as in chaos and testimony that “Somebody had been staying there and had been using the pots and pans and dishes.” Defendant argued that this evidence showed that the burglar ran south along Douglas Avenue and turned west toward the corporation yard before reaching Bassetlaw South, while the killer, entering the area from .the south, shot Rea south of Bassetlaw South, then fled northeast where he encountered Jensen.

2 The additional instructions concerned the meaning of “in the perpetration of a burglary” and expressly informed the jury that the evidence is such that defendant is either innocent of the charge or is guilty of first degree murder.

3 At the trial defendant, in objecting to the receipt of the tape recording, pointed to evidence that the police knew that the sheriff’s office had received a call from an attorney who inquired whether there were any warrants for defendant and stated that defendant would give himself up if he was wanted. Defendant stated that the police, with that knowledge, “secretly contrived to take a statement from [him] out of the presence of his attorney” at a time when they “had sufficient evidence to make an arrest and to return an indictment . . . Defendant asserted that to elicit a statement from defendant under such circumstances is violative of Massiah, Escobedo and Miranda. Although in Massiah v. United States, supra, 377 U.S. 201, it was contended that the use by a government agent of radio equipment to overhear a conversation violated the defendant’s Fourth Amendment rights, the United States Supreme Court did not reach that issue, and here-it is apparent that defendant relied upon Massiah solely for its holding with respect to the right to counsel under the Sixth Amendment. Miranda v. Arizona, supra, 384 U.S. 436, and Escobedo v. Illinois, supra, 378 U.S. 478, were based on the Fifth and Sixth Amendments — not the Fourth Amendment.

4 After both sides rested at the guilt trial, defendant requested that the public defender be discharged and the case reopened. After discussion of the matter, the court granted the request. Later, before arguments at the guilt trial, defendant informed the court that he found he could not represent himself and had no funds to pay for his defense. The court inquired whether he objected to having the public defender reappointed, and defendant replied that he did not care. The court then reappointed the public defender to represent defendant.

5 Penal Code section 1074 provides, “A challenge for implied bias maybe taken for . . . any of the following causes .... 8. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would, preelude his finding the defendant guilty . . . .”

6 Venireman Pobor was questioned: “Q. [By the court] You indicated also, I believe, that you have some conscientious objections — opinion regarding the death penalty law . . . ? A. Tes, I do. Q. Bo you want to indicate that you would find it impossible under any circumstances because of that opinion from bringing in either the- death penalty or from making a finding of guilt ... or do you know? A. It’s a matter of conscience. I know as a juror what my job is. I would have to bring in whatever the decision in the case was. I would, rather not. . . . Q. [By the prosecutor] Now, you had indicated to the judge that yon had some type of conscientious objection against the death penalty itself? A. Yes ... Q. Is the conviction you have in your mind, is it a firm conviction that you feel? A. I feel the death penalty serves no purpose. Q. If it were up to you, if you. were selected as a juror, after hearing the evidence in the case you would not render a verdict for the death penalty? A. I feel that if I’m chosen I would have to undergo that disturbance. I would rather not. ... Q. ... if you did sit as a juror on the death penalty phase, would you by conscience be required to return a verdiet of life imprisonment? A. I’m afraid I would. ... I would say life imprisonment, since I’m against the death penalty. . . . Q. [By defense counsel] And you at this time, do you feel that if the Court indicated that the matter was in your discretion, do you feel that there are no proper eases or there could be no proper cases for the imposition of the death penalty? A. There .could not. I feel there could not. Q. And therefore under no circumstances could you return a verdiet which would indicate the death penalty, if you were called upon to assess the penalty? A. No.”

Venireman McRae was questioned: ”Q. [By the court] Bo you think you could be fair and impartial? A.I. don’t believe in the death' penalty. Q. , . . You, in other words, don’t think it should be on the books, is that it? A. Eight. Q. But being that it is, do you think you are prepared to follow the law of . . . California? A. I will do my best. It’s hard for me to say eonvineingly one way or the other, because I really don’t know. Q. Well, because of this opinion you have regarding the death penalty, would you arbitrarily disregard its application? A. No, I would not. . . . Q. [By the prosecutor] . . . Now, do you think, after hearing what" evidence has been offered in both trials, that because of your feelings you would be precluded from, awarding the death penalty; and as you sit there now you would award a verdict of life imprisonment in preference to the penalty [sic] ? A. I feel that would be my opinion, yeS. . . . The Court: And under no circumstances would you award the death penalty? The Juror: I don’t believe so, your Honor. The Court: Well, we want to know no.w. The Juror: No. . . . Q. [By defense counsel] And you feel — is it my understanding that you feel at . . . the penalty trial, you would be unable to assess the death penalty under any circumstances? A. Correct.”

Venireman Locke was questioned:' ‘' Q. [By the court] Ho yom know of any reason why you could not serve in this ease? A. I have some reservations about the death penalty. Q. What’s your attitude on it? A. I’m against it. Q. AU right. Notwithstanding your opposition to the death penalty law, are-you prepared to follow that law should circumstances influence you that you should? A. Yes. . . . Q. [By the prosecutor] Now, do you have such conscientious objections to the death penalty that you feel that- you would not be able to render such a verdict, whereas the alternative would be life imprisonment? Hid you follow my question? A. Yes, I believe I do. Q. And what would your answer be? A. I would not vote for the death penalty. . . . Q. [By defense counsel] Is it your feeling that you could under no circumstances, even though the law now states that there is a death penalty . . . —did you state under no circumstances could you vote for a death penalty? A. I feel I couldn’t'. Q. You feel you could not under any circumstances? A. Yes.”

Venireman Jenkins was questioned: ‘‘Q. [By the court] I believe you stated and raised your hand that you have some objection to the death penalty law? A. Yes. Q. Is that such that you would find it impossible to bring in a death penalty verdict? A. Yes, L think it is. ,Q. Under any circumstances? A. Under any circumstances. ...”

Venireman Zufall was questioned: ‘‘Q. [By the court] You indicated you-had . . '. some conscientious opinion regarding the death penalty law? A. Yes, sir. Q. Y.ou are opposed to it? A. (Nods head.) Q. Hoes that mean you could not, never apply it? A. I believe I just can’t bring that into agreement with my religious convictions. Q. By reason of your religious convictions, you are opposed to the law and would under no eijrcumstances follow it? A. Yes. . . . Q. You refuse to impose the death penalty ’-under any circumstances? A. (Nods head.) . . . The Court: You realize . . there’s no guide by which the law tells you where you apply the death penalty. ... It is discretionary with the jury ..... Having that'in mind, do you still find it impossible because of your conscientious objections and beliefs'under any circumstances to even consider itpplying the death penalty? The Juror: I thought this through many years ago, your Honor, and I’ve held to it and I just can’t bring myself to-ehange it. I couldn’t condemn another person to death.”

Venireman Thomas stated that she had “reservations on the death penalty” and that they would preclude her from ever bringing in a death penalty verdict in any kind of a case.

Venireman Tabor stated that she would find, it impossible to return the death penalty in any kind of 'a ease because she had moral scruples against the death penalty law.

Venireman Beard was questioned: ‘‘Q. [By the court] And do you know of any- reason why you couldn’t serve as a fair and impartial juror? A. I have reservations on the death penalty. Q. Well, will you state what they' are? A. Well, I’d rather not — I don’t believe I could inflict that. . . . Q. Do you feel that you would be able — unable to even exercise the discretion of imposing either the death penalty or life imprisonment? A. I think so. Q. Are you certain in your mind?. A. I think so, yes. Q. Under no circumstances would you impose the death penalty? A. -No. . . . Q. [By defense counsel] ... if there was no obligation on you to assess tbe penalty, could you determine . . . the degree of the. crime . . . ? A. I think so. . . . The Court: Would you have any problem with that, knowing that should you determine it to be first degree murder— The Juror: Welly I don’t know. The Court: • — that thereafter consideration must be given to a life or death type of sentence? The Juror: Well, as long as there was a choice between life and death, it would be all right. The. Court: If you had a choice— The Juror: There would be— The Court: Would you consider both? The Juror: I think so. The Court: Life or death? The Juror: Uh-huh. The Court: And notwithstanding your attitude toward the death penalty, you would, give consideration to both, depending upon your impression? The Juror: Well, it would depend upon the arguments and the evidence. . . . Q. TBy the prosecutor] I understood you, Mr. Beard, that you yourself could not award-the death penalty? A. I don’t believe I could. Q. And would that be in almost any type of case? A. I think so. . . . Q. You are opposed to the death, penalty as such? A. Yes. Q. And you feel in any case you could not¹ award the death penalty? A. Ho. . . . The Court: Well, you say, Mr. Beard, you don’t think you could. That leaves it open to possibility that you could. We’d like to know whether or not you have such a 'conviction in your mind that you absolutely would not or whether you would consider depending upon all of the circumstances? The Juror: I don’t think that I would consider it. The Court: Because of your conviction? The Juror: That’s right.”

Venireman Sahary stated that she was opposed to the death penalty and that notwithstanding the circumstances of the ease she would refuse to vote for that penalty.

After Venireman Thurston "stated that she entertained objections to the death penalty law, she was asked ‘‘Are you indicating . . . that under no circumstances would you as a juror impose it because you are opposed to it in theory?” and she replied, ‘‘Bight.”

Venireman Weaver stated that he had an objection to capital punishment. Questioning ensued regarding that objection, and, after he was informed, that the choice between the two penalties was in the jury’s discretion and that the law gives no guide, he was asked, ‘ ‘ And knowing that do you feel' that your convictions are such that you would not even consider it in the alternative, of the death as contrasted with life imprisonment? A. I feel, yes that I wouldn’t consider it. Q. You absolutely would impose only the life imprisonment? You wouldn’t give consideration for death? A. I don’t feel that I could, no. ...”

Venireman Inderkum stated that she was opposed to the death penalty' and would not even consider its imposition because of her attitude.

During voir dire of Venireman Ereitag the following occurred: “Q. You think you could serve in a fair and impartial capacity? A. I don’t agree with capital punishment. Q. With that disbelief, if its application in California prevents you from imposing it, you could not impose it under any circumstances? A. Yes. . . . Q. [By defense counsel] . . . does this problem arise only in the assessment of penalty? A. Yes. Q. Do you feel that if you were not required to assess the penalty that you could determine the. guilt or innocence in this matter? A. Yes. Q And do you feel that you could also determine the degree of offense . . . if you yourself were not required to assess the penalty? A. Yes. . . . The Court : Even knowing, that thereafter, if you brought in a first degree murder finding— The Juror: I misunderstood the question. No, not if my decision were the proximate cause. The Court: That would lead to a finding that would have to be made by another body, a choice between life and death imprisonment or otherwise death [sic], would that interfere with your ability to render a fair and impartial judgment? The Juror: Yes, in that context, it would.”

1 It should be pointed out that the United States Supreme Court has Ordered further hearing in the Hoffa case. (Giordano v. United States, 394 U.S. 310 [22 L.Ed.2d 297, 89 S.Ct. 1164].)