Opinion
KINGSLEY, J. —
In a three-count information, defendant was charged with having committed, on December 23, 1974, the offenses of murder (Pen. Code, § 187), robbery (Pen. Code, § 211) and burglary (Pen. Code, § 459). In the murder count, two items of special circumstances were alleged. One item of special circumstances alleged was that defendant had committed the murder during the commission and attempted commission of a robbery in violation of section 211 of the Penal Code. A second item of special circumstances alleged was that defendant had committed the murder during the commission and attempted commission of a burglary in violation of section 460, subdivision 1 of the Penal Code.
Defendant was found guilty as charged in the three counts, with the murder being fixed as murder of the first degree, the robbery being fixed as the first degree, and the burglary being fixed as the first degree. The allegations with respect to the two items of special circumstances were found by the jury to be true. Defendant received a death sentence on the murder conviction. Defendant was sentenced on the robbery and burglary convictions to state prison for the terms prescribed by law, with the sentences to run concurrently with each other. Execution of sentence on the robbery and burglary convictions was stayed pending appeal from the murder conviction. Defendant has appealed; we modify the judgment and affirm it as modified.
The victim of the three offenses was Angelina Marino, a 72-year-old woman. She was found stabbed to death in her apartment. There were 61 stabbing and cutting wounds altogether. In addition to the stab wounds, [451]*451there were several areas of trauma which appeared to be produced by a blunt instrument. There was evidence that the victim’s apartment had been broken into and assorted items of jewelry had been removed from the victim and her apartment. The evidence against defendant was primarily circumstantial but of a convincing nature.
On appeal, defendant does not advance any contention with respect to insufficiency of the evidence to sustain the convictions. In view of this fact, setting forth the evidence introduced against defendant becomes unnecessary. Essentially defendant makes three contentions on this appeal: (1) that the exclusion, prior to the guilt phase of defendant’s trial, of prospective jurors who expressed conscientious scruples against capital punishment to the extent that they could not vote for the death penalty irrespective of the evidence, amounted to a denial of his constitutional rights to due process of law, equal protection of the laws and a right to an impartial trial by jury; (2) that the trial court erred in permitting the prosecutor to introduce evidence of defendant’s assault on a police officer upon defendant’s initial arrest for being drunk in public; and (3) that the sentence of death is invalid in view of the California Supreme Court’s holding in Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101], that Penal Code sections 190 and 190.3 were invalid with respect to imposition of the death penalty.
I
In the selection of jurors for the guilt phase of defendant’s trial, the trial court conducted a voir dire examination of prospective jurors designed to elicit information as to whether they had conscientious scruples against the death penalty to such an extent that it would affect their ability to fairly and" impartially determine defendant’s guilt or determine whether any of the special circumstances alleged were true or not. As a result of such voir dire examination, six prospective jurors were excused for cause and one prospective alternate juror was so excused.
Defendant makes two contentions: (1) that, in light of the 1973 revision of sections 190.1 and 190.2, under which the jury finds only the facts of the alleged special circumstances, but the imposition of the death penalty is an act of the trial judge, the California cases decided under the pre-1973 statute are no longer applicable; and (2) that, even if it is proper to exclude jurors with an unalterable opposition to the death penalty from determining the special circumstances issue, it was error to exclude them from determining the guilty phase. We reject both contentions.
[452]*452(1) It is trac that, in form, a post-1973 jury does not fix a sentence but finds only facts. However, under section 190.2 of the Penal Code, the imposition of the death penalty is mandatory once the special circumstances have been found to be true. Even though a juror may not know that his verdict has that conclusive force, it is naive to argue that the juror does not know, from the very fact of a separate hearing after a verdict of guilty, that the verdict on special circumstances will affect the sentence to be imposed by the court and that that sentence may well be one of death. The issue of the death penalty has been a widely publicized matter in California for many years; it is not improper for a trial court to exclude from a jury those persons whose beliefs in the wrongfulness of the death penalty would cause them to return a special circumstances verdict that would avoid the possibility of such a sentence.
(2) The second contention was considered by the California Supreme Court in People v. Thornton (1974) 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267], where the court said, at page 753: “Defendant contends that he was denied due process in the guilt phase because certain prospective jurors who expressed an inability to impose the death penalty, and were excused for cause, nevertheless either (1) stated that their views would not prevent them from rendering a fair and impartial decision on the issue of guilt, or (2) stated that their views might prevent them from rendering a fair and impartial decision on the issue of guilt, or (3) were not asked whether their views would have such an effect. These prospective jurors, it is urged, should have been allowed to sit on the jury for the trial of issues of guilt. This argument, however, was answered by us in People v. Washington (1969) 71 Cal.2d 1061, at pages 1087-1090 [80 Cal.Rptr. 567, 458 P.2d 479]. The seating of persons who, although unable to impose the death penalty might have been able to render a fair and impartial decision on the issue of guilt, would have resulted in separate juries for guilt and penalty issues whenever the trial of the latter issue was required under sections 190 and 190.1 of the Penal Code. However, the Legislature in section 190.1 expressed a clear preference that both guilt and penalty issues be tried by the same jury, and we have repeatedly pointed out that insistence upon a single jury pursuant to this preference did not deprive defendant of his right to an impartial jury. [Citations.]” (Fns. omitted; italics in original.)
It is to be noted that the 1973 version of Penal Code section 190.1 contained the same provision as did the pre-1973 version with respect to a preference for one jury handling the issues of both punishment and guilt in murder cases. The Thornton expression that a single july for both the [453]
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Opinion
KINGSLEY, J. —
In a three-count information, defendant was charged with having committed, on December 23, 1974, the offenses of murder (Pen. Code, § 187), robbery (Pen. Code, § 211) and burglary (Pen. Code, § 459). In the murder count, two items of special circumstances were alleged. One item of special circumstances alleged was that defendant had committed the murder during the commission and attempted commission of a robbery in violation of section 211 of the Penal Code. A second item of special circumstances alleged was that defendant had committed the murder during the commission and attempted commission of a burglary in violation of section 460, subdivision 1 of the Penal Code.
Defendant was found guilty as charged in the three counts, with the murder being fixed as murder of the first degree, the robbery being fixed as the first degree, and the burglary being fixed as the first degree. The allegations with respect to the two items of special circumstances were found by the jury to be true. Defendant received a death sentence on the murder conviction. Defendant was sentenced on the robbery and burglary convictions to state prison for the terms prescribed by law, with the sentences to run concurrently with each other. Execution of sentence on the robbery and burglary convictions was stayed pending appeal from the murder conviction. Defendant has appealed; we modify the judgment and affirm it as modified.
The victim of the three offenses was Angelina Marino, a 72-year-old woman. She was found stabbed to death in her apartment. There were 61 stabbing and cutting wounds altogether. In addition to the stab wounds, [451]*451there were several areas of trauma which appeared to be produced by a blunt instrument. There was evidence that the victim’s apartment had been broken into and assorted items of jewelry had been removed from the victim and her apartment. The evidence against defendant was primarily circumstantial but of a convincing nature.
On appeal, defendant does not advance any contention with respect to insufficiency of the evidence to sustain the convictions. In view of this fact, setting forth the evidence introduced against defendant becomes unnecessary. Essentially defendant makes three contentions on this appeal: (1) that the exclusion, prior to the guilt phase of defendant’s trial, of prospective jurors who expressed conscientious scruples against capital punishment to the extent that they could not vote for the death penalty irrespective of the evidence, amounted to a denial of his constitutional rights to due process of law, equal protection of the laws and a right to an impartial trial by jury; (2) that the trial court erred in permitting the prosecutor to introduce evidence of defendant’s assault on a police officer upon defendant’s initial arrest for being drunk in public; and (3) that the sentence of death is invalid in view of the California Supreme Court’s holding in Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101], that Penal Code sections 190 and 190.3 were invalid with respect to imposition of the death penalty.
I
In the selection of jurors for the guilt phase of defendant’s trial, the trial court conducted a voir dire examination of prospective jurors designed to elicit information as to whether they had conscientious scruples against the death penalty to such an extent that it would affect their ability to fairly and" impartially determine defendant’s guilt or determine whether any of the special circumstances alleged were true or not. As a result of such voir dire examination, six prospective jurors were excused for cause and one prospective alternate juror was so excused.
Defendant makes two contentions: (1) that, in light of the 1973 revision of sections 190.1 and 190.2, under which the jury finds only the facts of the alleged special circumstances, but the imposition of the death penalty is an act of the trial judge, the California cases decided under the pre-1973 statute are no longer applicable; and (2) that, even if it is proper to exclude jurors with an unalterable opposition to the death penalty from determining the special circumstances issue, it was error to exclude them from determining the guilty phase. We reject both contentions.
[452]*452(1) It is trac that, in form, a post-1973 jury does not fix a sentence but finds only facts. However, under section 190.2 of the Penal Code, the imposition of the death penalty is mandatory once the special circumstances have been found to be true. Even though a juror may not know that his verdict has that conclusive force, it is naive to argue that the juror does not know, from the very fact of a separate hearing after a verdict of guilty, that the verdict on special circumstances will affect the sentence to be imposed by the court and that that sentence may well be one of death. The issue of the death penalty has been a widely publicized matter in California for many years; it is not improper for a trial court to exclude from a jury those persons whose beliefs in the wrongfulness of the death penalty would cause them to return a special circumstances verdict that would avoid the possibility of such a sentence.
(2) The second contention was considered by the California Supreme Court in People v. Thornton (1974) 11 Cal.3d 738 [114 Cal.Rptr. 467, 523 P.2d 267], where the court said, at page 753: “Defendant contends that he was denied due process in the guilt phase because certain prospective jurors who expressed an inability to impose the death penalty, and were excused for cause, nevertheless either (1) stated that their views would not prevent them from rendering a fair and impartial decision on the issue of guilt, or (2) stated that their views might prevent them from rendering a fair and impartial decision on the issue of guilt, or (3) were not asked whether their views would have such an effect. These prospective jurors, it is urged, should have been allowed to sit on the jury for the trial of issues of guilt. This argument, however, was answered by us in People v. Washington (1969) 71 Cal.2d 1061, at pages 1087-1090 [80 Cal.Rptr. 567, 458 P.2d 479]. The seating of persons who, although unable to impose the death penalty might have been able to render a fair and impartial decision on the issue of guilt, would have resulted in separate juries for guilt and penalty issues whenever the trial of the latter issue was required under sections 190 and 190.1 of the Penal Code. However, the Legislature in section 190.1 expressed a clear preference that both guilt and penalty issues be tried by the same jury, and we have repeatedly pointed out that insistence upon a single jury pursuant to this preference did not deprive defendant of his right to an impartial jury. [Citations.]” (Fns. omitted; italics in original.)
It is to be noted that the 1973 version of Penal Code section 190.1 contained the same provision as did the pre-1973 version with respect to a preference for one jury handling the issues of both punishment and guilt in murder cases. The Thornton expression that a single july for both the [453]*453guilt trial and the punishment trial does not violate any constitutional rights of defendant refers to the pre-1973 version of Penal Code section 190.1, which provides, in relevant part: “ ‘If the defendant was convicted by a jury, the trier of fact [on the issue of penalty] shall be the same jury unless, for good cause shown, the court discharges that jury in which case a new jury shall be drawn to determine the issue of penalty....’ ” (See Thornton, supra, 11 Cal.3d 738, 753, fn. 10.) The pertinent provisions of the 1973 version of Penal Code section 190.1 provides: “If the defendant was convicted by a jury, the trier of fact shall be the same jury unless, for good cause shown, the court discharges that jury, in which case a new juiy shall be drawn to determine the issue of whether or not any of the special circumstances charged are true or not true.” (Italics added.) (See Stats. 1973, ch. 719, § 4, p. 1298.)
Defendant argues that a series of studies have reached the conclusion that the exclusion, at the guilt stage, of jurors opposed to the death penalty, results in a jury not representative of the community as a whole and in a jury overly prone to convict. Similar arguments have been made to our Supreme Court and have been rejected by it. (See People v. Rhinehart (1973) 9 Cal.3d 139 [107 Cal.Rptr. 34, 507 P.2d 642]; People v. Murphy (1972) 8 Cal.3d 349 [105 Cal.Rptr. 138, 503 P.2d 594].) If the use of separate juries is to be mandated, it is for the Supreme Court and not an intermediate appellate court to adopt such a rule.
II
Defendant was first arrested on a charge of being drunk in a public place. He was taken to a hospital for medical treatment, since he was bleeding at that time. After testifying that defendant had refused to sign a consent for medical treatment, Ofiicer Markussen was permitted to testify, over appropriate objection by defendant, that defendant started kicking and swinging and succeeded in kicking the officer in the chest.
The People here seek to justify the receipt of that evidence by reliance on People v. Terry (1970) 2 Cal.3d 362 [85 Cal.Rptr. 409, 466 P.2d 691], and People v. James (1976) 56 Cal.App.3d 876 [128 Cal.Rptr. 733], which hold that consciousness of guilt may be shown by evidence of defendant’s flight, evasion of apprehension or other similar conduct. We agree with defendant that the evidence in question did not fall within the scope of those cases. However, the incident had so little probative force that we conclude that, in light of the whole record, it was not prejudicial beyond any reasonable doubt.
[454]*454III
As we have pointed out above, the result of the jury finding on the special circumstances was the imposition by the trial court of the death penalty. The provision under which that sentence was imposed has since been held to be unconstitutional in Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101]. As we understand him, the Attorney General argues that the 1977 revision of the death penalty statute, contained in chapter 316 of the Laws of 1977, cured the constitutional objections relied on in Rockwell and that the case should be remanded for a new special circumstances hearing. That contention was made and rejected in People v. Harvey (1977) 76 Cal.App.3d 441 [142 Cal.Rptr. 887]; we follow that decision.
The judgment is modified to provide for imprisonment for life on count I; the sentences on the other two counts are merged into that sentence (Pen. Code, § 669); otherwise the judgment is affirmed.
Files, P. J., concurred.