People v. Wein

326 P.2d 457, 50 Cal. 2d 383, 1958 Cal. LEXIS 164

• Court: California Supreme Court
• Decided: May 27, 1958
• Docket: Crim. 6130
• Status: Published

Opinions

SPENCE J.

Defendant was charged by information with three counts of robbery (Pen. Code, § 211), six counts of rape (Pen. Code, § 261, subd. 3), six counts of sex perversion (Pen. Code, § 288a), two counts of kidnaping (Pen. Code, §207), and five counts of kidnaping for the purpose of robbery (Pen. Code, § 209). Defendant initially entered pleas of not guilty and not guilty by reason of insanity, but he withdrew the latter plea prior to trial. The jury found defendant guilty on all the counts charged in the information. They further found that in each count charging kidnaping for the purpose of robbery, the person named therein suffered bodily harm, and they fixed the penalty at death; and that in each count charging robbery, the crime was in the first degree. A motion for a new trial was denied. Defendant was sentenced to death on the five counts of kidnaping for the purpose of robbery done with bodily harm, and to the state prison for the term prescribed by law on each of the remaining counts, the last mentioned sentences to run consecutively. This appeal from the judgments of death comes before us automatically. (Pen. Code, §1239, subd. (b).) Defendant’s present counsel have been substituted for his trial counsel for the purpose of this appeal.

These convictions arose out of separate attacks on eight different women, which attacks occurred over a period of approximately 18 months. It would serve no useful purpose to relate all the sordid facts surrounding the commission of the several offenses. The evidence concerning the last incident will be set forth in some detail, as it typifies the general pattern which ran through most of the attacks with but slight variations.

On October 30, 1956, the last victim advertised some furniture for sale in several newspapers circulated in the Los Angeles vicinity, giving her telephone number but not her address. She occupied a lower apartment in a house located in the Hollywood hills. At about noon on October 31, 1956, she received a telephone call from a man in response to the advertisement, and she made an appointment for him to see the furniture that afternoon. The man arrived at about 2:30 p. m. and identified himself as the party who had called earlier that day. A friend of the victim was present at her apartment when he arrived. He indicated that he was interested in beds and accompanied the victim into the bedroom to examine them. After seeing and discussing the furniture for 10 to 15 minutes, the man left, saying that he would either call or return after visiting another place. The victim drove her friend home at about 3:30 p. m. and returned to her apartment at about 3:45 p. m.

About five minutes after her return, the man reappeared at the apartment and said that he wanted to measure one. of the beds to see if it would fit his living quarters. After measuring the bed, he stated that he would like to call his wife and have her view the furniture. With the victim’s permission, he used he!r telephone, and after dialing a number and apparently getting no response, he hung up.

The man then looked at his watch and told the victim that he had lost his watch stem. She sympathized with him and got down on the floor in the small hall just outside the living room to help him look for it. Being unable to find the stem, she started to get up. The man, who was then behind her, put his arm around her waist and told her to say nothing. She felt something sharp in her back and discovered that it was a knife. He instructed her to lie down and then tied her hands with copper wire.

He then told the victim to find her billfold, and after helping her up, told her that he wanted only money and that he would not hurt her. She could not remember exactly where she had last placed her billfold. With his arms around her and the knife in her back, he forced her against her will and without consent to walk with him to a desk in the living room. This was a distance of approximately 20 to 25 feet. He opened the desk drawer but the billfold was not there. He told the victim to crawl on her knees through the living room to the bedroom, a distance of about 50 feet, and she complied out of fear. She told him to look in the dresser drawers. He found the billfold, and placed it and the $17 or $18 it contained in his pocket.

The man then pushed the victim to the floor and said, “Now I have got the money, how about some sex?” He then removed the clothing from the lower portions of her body, exposed his private parts, and forced her to engage in an act of oral copulation (Pen. Code, § 288a) while he brandished a knife. Thereafter, and without her consent, he indulged in an act of sexual intercourse.

The telephone then rang and the occupants of the upstairs apartment started to walk around. The man said that he was going to leave. He made the victim lie on the floor on her stomach, tied her legs with her hose, and shoved her undergarments into her mouth. He then picked up a towel and ripped it, using the larger portion to wipe the floor, drawers and door knobs. He tied the other part of the towel around her mouth and covered her head with another towel. After he had left, she struggled and was able to free her hands and feet. She then summoned the police.

The seven other incidents reflect in varying degrees the same techniques and show a consistent pattern of operations used by the perpetrator of these crimes. In each case, either rentals of living quarters or sales of personal property had been advertised in the newspapers. In all but one, he gained entrance on the pretext that he was answering the advertisement. He would often use some ruse to survey the premises for other occupants, such as asking to wash his hands in the bathroom, viewing the items for sale, or making a telephone call. In several instances, he left after finding some impediment to his scheme, later returning at a more opportune time. In some, he pretended to call his wife or girl friend to have her join in the selection. He feigned that he had dropped a watch stem in six cases and a watch crystal in another. He grabbed the victims from behind and threatened them with a knife. Their hands were tied with copper wire in several cases, and their legs were bound with their own stockings. In many ways, the methods that he employed in forcing the victims to part with their money and, in most instances, to submit to his lustful desires were strikingly similar. Of course, all the similarities did not appear in every case. The sexual molestations varied in degree and did not occur at all in one case. During one attack, the assailant and another man were present. Nevertheless, there can be little doubt that the same man committed all of the numerous crimes charged.

Defendant was connected with these offenses in several ways. Seven of the victims positively identified him as their assailant. The eighth said he looked like the same man. Beyond these identifications, there were four other phases of the evidence corroborating the victims. First, a man transacting business with one of the victims clearly identified defendant as the person who was with her the night before she was molested. Second, a car which defendant had borrowed from a friend was seen parked in the driveway of the residence of one of the victims by two witnesses who recognized the vehicle by the lettered part of the California license plate and the somewhat unique brand of tires on it. Third, defendant was identified as the man who answered an advertisement for the sale of a used kitchen range and who left a check in payment. A handwriting expert testified that defendant was the person who wrote the cheek. There was no attack involved in the last mentioned incident. Fourth, expert witnesses testified that a fragmentary fingerprint found on a water glass, used by the assailant at the home of one of the victims, was the fingerprint of defendant.

Defendant denied that he had committed any of the offenses. Witnesses were called to testify to his good reputation. He also presented testimony indicating that he was at other locations during the time that three of the offenses had been committed.

Conduct of Prosecuting Attorney During Voir Dire Examination

Defendant contends that the deputy district attorney was overly zealous in questioning the prospective jurors. He primarily objects to the examination of the jurors about their opinions on capital punishment and to the discussion of their responsibility for imposing the death penalty if warranted by the facts of the case. However, a prosecutor in a case where the death penalty may be imposed clearly has the right to ascertain the views of the potential jurors (see People v. Hoyt, 20 Cal.2d 306, 318 [125 P.2d 29]; People v. Rollins, 179 Cal. 793, 795-796 [179 P. 209]) so that he can intelligently exercise his challenges against those whose consciences would preclude them from imposing this penalty. (See Pen. Code, § 1074, subd. 8; People v. Riser, 47 Cal.2d 566, 573-576 [305 P.2d 1].)

Defendant also deems portions of the prosecutor’s explanation of the law applicable to the case to have been prejudieial. However, the prosecutor properly used such explanation as a basis for hypothetical questions to determine whether the jurors would follow the instructions of the court (Kramm, v. Stockton Electric R.R. Co., 22 Cal.App. 737, 746-747 [136 P. 523]) and to ascertain their state of mind on the issues to be presented. (People v. Knight, 44 Cal.App.2d 887, 891-893 [113 P.2d 226].)

Defendant challenges the prosecutor’s remarks, to the effect that he represented all of the people of this state and not just the victims or police, as being calculated to impress the jurors with the importance of his position and to cause them to give undue weight to his actions. However, it was entirely proper for this public officer to inform the panel of his functions. In effect, he did little more than to state general theories underlying criminal prosecutions. In any event, since defendant failed to object to any of the alleged improper conduct during the deputy district attorney’s examination of the veniremen, he cannot now complain for the first time as, upon objection, any danger that the jury might have misunderstood their duty could have been corrected by proper instructions. (People v. Brice, 49 Cal.2d 434, 437 [317 P.2d 961]; People v. Guasti, 110 Cal.App.2d 456, 465 [243 P.2d 59].)

Conduct of Prosecuting Attorney During Arguments

Defendant raises numerous objections to the deputy district attorney’s arguments to the jury and states that the alleged misconduct denied him a fair trial as guaranteed by both the state and federal Constitutions. He claims that the jurors were “whipped" into their recommendation of the death penalty. This, in his view, was apparently produced by the prosecutor calling the jurors by their names, by taking them to task, and by using epithets. However, his conclusions entirely overstate the actual situation. It is true (1) that the deputy district attorney did refer to one or more jurors by name on three separate occasions; (2) that he did vigorously urge the jury throughout his arguments to impose the death penalty; and (3) that he did use “epithets" when he referred to defendant as being among that “strange breed" of “kidnapers, robbers and forcible rapists." With respect to the first point, while arguments should be addressed to the jury as a body and the practice of addressing individual jurors by name during the argument should be condemned rather than approved, it does not follow that such conduct is necessarily prejudicial in any given case. With respect to the second point, while the accused is entitled to a fair trial, the prosecutor may properly urge his points vigorously as long as he does not act unfairly; and therefore he may vigorously urge the jury to convict and to impose the death penalty in the light of the evidence. (People v. Harris, 219 Cal. 727, 732-733 [28 P.2d 906].) And with respect to the third point, the prosecutor may use appropriate epithets which are warranted by the evidence without being chargeable with prejudicial misconduct. (People v. Carr, 113 Cal.App.2d 783, 788 [248 P.2d 977] ; People v. Hunter, 49 Cal.App.2d 243, 250-251 [121 P.2d 529] ; People v. Burnette, 39 Cal.App.2d 215, 230 [102 P.2d 799].) In any event, no objection was made in the trial court to any of the above conduct or to certain other matters of which defendant now complains, and no instructions were asked with respect thereto. We have consistently rejected such claims when the point is raised for the first time on appeal. (People v. Hampton, 47 Cal.2d 239, 240-241 [302 P.2d 300]; People v. Byrd, 42 Cal.2d 200, 208 [266 P.2d 505].) Furthermore, this is not a case where any possible harmful effect of the comments could not have been obviated by a timely admonition to the jury (see People v. Kirkes, 39 Cal.2d 719, 726-727 [249 P.2d 1]) or where the evidence was so closely balanced, presenting grave doubt as to defendant’s guilt, that the prosecutor’s argument materially affected the outcome. (People v. Fleming, 166 Cal. 357, 381 [136 P. 291, Ann.Cas. 1915B 881].)

There was one instance during the prosecutor’s argument, however, where he may have strayed beyond the bounds of permissible argument and where a prompt objection was made by defendant’s counsel. The prosecutor said, in part, “Why, this fellow puts Caryl Chessman to shame. He makes a rank amateur out of Caryl Chessman.” At this point, the defense counsel cited this as prejudicial misconduct and requested that the jury be instructed to disregard it. The prosecutor then asserted his right under People v. Kynette, 15 Cal.2d 731 [104 P.2d 794], to proceed along these lines and the court permitted him to do so. He then contrasted Chessman’s attacks from an automobile disguised as a police vehicle operating in the relative open of the public streets with defendant’s assaults in the victims’ homes. He then said, “Chessman, too, had ice water in his veins. That little girl [the 14-year-old victim in this case] . . . will carry a mark on her forever. She may end up the same way Mary Alice Meza, the 17-year-old virgin, the victim of the Chessman attack, in a mental institution unless she has a . strong mind and can in some way through her religious thinking beat it.” He then concluded that the death penalty was deserved because the defendant displayed the “. . . behavior pattern of a cold cruel individual with ice water in his veins.”

The People attempt to justify the quoted argument, as did the prosecutor at the trial, by referring to People v. Kynette, supra. There it was said: “Counsel may illuminate his argument by illustrations which may be as various as the resources of his talents. He may refer to matters of common knowledge, not special to the case, and to well known historical incidents.” (15 Cal.2d 731, 757.) It appears, however, that the comments here were more similar to those criticized in People v. Jackson, 44 Cal.2d 511 [282 P.2d 898]. There the prosecutor in a kidnaping case referred to the Greenlease, Hart, and Lindbergh eases, and compared the ultimate fate of the victims. (44 Cal.2d 511, 520.) But even assuming that the prosecutor here went beyond the bounds of legitimate argument in his comparison of this case with the Chessman case, it does not follow that a reversal is required. It was not claimed on the trial or on this appeal that the perpetrator of the several offenses should have had imposed upon him any punishment less than that which the jury imposed. Defendant’s sole claim was that he was not the perpetrator. We have reviewed the record, and such review convinces us that the evidence of defendant’s guilt was so strong that there is no reasonable probability that any result more favorable to defendant would have been reached in the absence of the claimed misconduct. Under such circumstances, the claimed misconduct does not constitute ground for a reversal. (People v. Watson, 46 Cal.2d 818, 837-838 [299 P.2d 243].)

Argument of Prosecuting Attorney as to Meaning of Life Imprisonment without Possibility of Parole and Legislative Abolition of Death Penalty

Defendant asserts that it was prejudicial error for the deputy district attorney to have stated both in his voir dire examination of the jury and his closing argument that a sentence of life imprisonment without possibility of parole would not necessarily mean that defendant would remain in prison for the remainder of his life. He pointed out that any such sentence could be commuted by the Governor, that a pardon could be granted by the Governor, or that the Legislature might enact a law changing the sentence. In People v. Chessman, 38 Cal.2d 166, 189-190 [238 P.2d 1001], the identical remarks, both in the argument by the prosecutor and the explanatory instructions by the court, were sanctioned insofar as they were addressed to the discretion of the jury in specifying the punishment for kidnaping for the purpose of robbery where the victim suffered bodily harm. (See also People v. Reese, 47 Cal.2d 112, 116-117 [301 P.2d 582]; People v. Jensen, 43 Cal.2d 572, 580-581 [275 P.2d 25] ; People v. Byrd, supra, 42 Cal.2d 200, 206-208.) When the deputy district attorney’s remarks are read in full, it is quite apparent that they could only have been taken by the jurors as factors to be considered in assessing the penalty. The case of People v. Morloch, 46 Cal.2d 141, 147-148 [292 P.2d 897], relied upon by defendant, is clearly distinguishable. There, the prosecutor erroneously stated that a person sentenced to life imprisonment was eligible for parole within seven years rather than after having served seven years. Equally unavailing is People v. Caetano, 29 Cal.2d 616, 619-620 [177 P.2d 1], since the only comments there held improper were to the effect that paroles might be granted without regard to merit in order to provide space for incoming prisoners.

Defendant also maintains that the deputy district attorney’s reference to the Legislature’s consideration of a bill proposing a moratorium on the death penalty may have harmed him by leading the jurors to believe that he would benefit from such a suspension. However, the deputy district attorney made it abundantly clear that he did not believe that any such moratorium would be adopted. He merely used this to show how changes in penalties could be sought in amplication of his remarks on the uncertainties of a sentence to life imprisonment without parole.

Sufficiency of Evidence

Defendant argues that there was ample evidence to have supported a verdict of acquittal, and he buttresses this conclusion by marshaling those facts which tend to show his innocence. He then characterizes parts of the People’s expert testimony as “highly suspect.” From this, he expresses the belief that the jury might well have accepted his alibi except for the “grossly prejudicial” conduct of the prosecutor. Insofar as this again raises the question of prejudice from the prosecutor’s actions,sthis has been fully considered. Insofar as it challenges the sufficiency of the evidence, defendant is merely asking us to reweigh the evidence. This is clearly not our function as an appellate court. (See People v. Daugherty, 40 Cal.2d 876, 885 [256 P.2d 911]; People v. Headlee, 18 Cal.2d 266, 267 [115 P.2d 427]; People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778]; People v. Tedesco, 1 Cal.2d 211, 219 [34 P.2d 467].) Further, even though there might have been sufficient evidence to sustain a finding of not guilty, this in no way shows that the verdict of guilty was without abundant evidentiary support.

Finally, defendant attempts to show that some of the evidence was so highly improbable as to be incredible and to thus allow an appellate court to set aside the conviction. (See People v. Headlee, supra, 18 Cal.2d 266.) He says that, as a small man with an injured back, he would have been unable to seize a woman, tie her, and then rape her. The jury only had defendant’s own testimony as to the condition of his back, but they did have a full view of his stature and the relative stature of the victims. It was within their province to reject his statements, as they apparently chose to do. They evidently believed the testimony of the various women whom he had abused. The conflict in the evidence was resolved by the triers of fact. There is nothing in the record to establish that it was physically impossible for defendant to have performed the acts ascribed to him, or to compel us to declare that the numerous victims’ testimony was inherently improbable. (People v. Huston, 21 Cal.2d 690, 693 [134 P.2d 758]; People v. Wilder, 151 Cal.App.2d 698, 704-705 [312 P.2d 425].)

Extent of Movement Required to Establish Kidnaping Under Penal Code, Section 209

Defendant urges that the Legislature in enacting section 209 of the Penal Code, which permits the imposition of the death penalty against “any person . . . who kidnaps or carries away any individual to commit robbery” if the victim suffers bodily harm, intended that the movement be over a substantial distance and not merely between the rooms in a dwelling. He expressly asks this court to reconsider the position it took in People v. Chessman, supra, 38 Cal.2d 166, 190-193. There we said, “The fact that Regina in being kidnaped or carried away was forced to move only 22 feet does not make her abduction any the less kidnaping within the meaning of the statute. She was taken from the car of her chosen escort, and from his company, to the ear of defendant and into the latter’s company and there detained as a virtual prisoner and forced to submit to his demands. It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.” (38 Cal.2d 166, 192.) We there reviewed the California cases and those from other jurisdictions where kidnapings were held to exist although the asportations were not great. Here, the testimony of some of the victims fixed the amounts of movement at distances ranging from a few feet up to more than 50 feet. Under the reasoning and language of the Chessman case, any of these distances sufficed for a conviction under the challenged section. This conduct went beyond a mere detention during the course of an armed robbery, which is no longer punishable by death. (See People v. Taylor, 135 Cal.App.2d 201 [286 P.2d 952].) To the extent that defendant’s argument is predicated on legislative intent, it must be noted that the Legislature has been in session several times since the Chessman ease was decided, and it has not seen fit to amend the kidnaping law to limit the rule we announced. If the section, as interpreted by this court, is regarded as too harsh, the remedy is for the Legislature to redefine kidnaping, and not for this court to engraft some uncertain distance limitation onto the plain language of the section. (See People v. Knowles, 35 Cal.2d 175, 180-183 [217 P.2d 1].)

Constitutionality of Penal Code, Section 209

Defendant asks that we declare section 209 unconstitutional because the language, “who kidnaps or carries away,” is uncertain. This indefiniteness is supposed to be apparent from the decisions of this and other California courts. However, defendant fails to cite the decisions which he believes produce this effect. Rather, it would seem that the previously quoted language from the Chessman case clearly indicates the broad sweep of this section.

While defendant concededly had a right to fair notice as to what acts were prohibited (see In re Peppers, 189 Cal. 682 [209 P. 896] ; People v. Neff, 117 Cal.App.2d 772, 780-781 [257 P.2d 47]), it appears that the questioned statute contained terms well enough known to enable defendant and others to understand their import. (See Lorenson v. Superior Court, 35 Cal.2d 49, 59-61 [216 P.2d 859] ; People v. Deibert, 117 Cal.App.2d 410, 417-420 [256 P.2d 355] ; People v. Darby, 114 Cal.App.2d 412, 427-428 [250 P.2d 743].) The statute did not have to include “detailed plans and specifications” of the proscribed conduct. (Lorenson v. Superior Court, supra, 35 Cal.2d 49, 60.)

Admissibility of Accusatory Statements

Defendant claims that the trial court erred in admitting certain statements and by treating his reactions to them as adoptive admissions. One of the victims testified that after she had seen defendant in a line-up in jail, she was asked by the police to confront him. When she later met him in a small room, she remarked, “Well, I’m glad they caught you, kid.” Defendant made no reply. The other incident occurred when a witness, who had seen defendant at the home of one of the victims prior to an attack, later asked defendant several questions at the behest of the investigating police officers. Defendant cast his eyes toward the floor and said that he would not answer any questions unless he had an attorney present. Defendant contends that these incidents could not possibly be construed as any type of admission, and that the error in admitting them was compounded by the deputy district attorney’s comments and the court’s instructions.

While the testimony concerning the first incident involving the remarks of a victim was correctly admitted in order to permit the jurors to evaluate its accusatory nature and the weight to be accorded to defendant’s failure to make any reply (see People v. Smith, 111 Cal.App. 579, 580-581 [295 P. 862]), the second one, where defendant remained silent on the asserted ground that he would not speak unless he had an attorney present, might well have been excluded if objection had been made. (See People v. Abbott, 47 Cal.2d 362, 373 [303 P.2d 730]; People v. McGee, 31 Cal.2d 229, 238-240 [187 P.2d 706].) However, defendant’s objection to this line of testimony is made for the first time on this appeal. Such belated attempts to obtain reversals have been held ineffective in regard to testimony relating to alleged admissions (People v. Guarino, 132 Cal.App.2d 554, 559 [282 P.2d 538]; People v. Cummings, 7 Cal.App.2d 406, 407 [46 P.2d 778]) and in regard to admitting hearsay evidence (People v. Wade, 138 Cal.App.2d 531, 533 [292 P.2d 303] ; People v. Murray, 135 Cal.App.2d 600, 602 [287 P.2d 775]). The rule should apply with equal force to testimony relating to alleged adoptive admissions. Also, defendant cannot make, as he attempts here, his first attack on the arguments of the deputy district attorney with regard to admissions on appeal, when any error could have been obviated at the trial. (See People v. Brice, supra, 49 Cal.2d 434, 437; People v. Hampton, supra, 47 Cal.2d 239, 240-241 [302 P.2d 300].) Moreover, the giving of instructions on the definition of an admission, the effect of silence or a false or evasive reply, and the possibility of falsehoods indicating consciousness of guilt (see Cal. Jury Instrns., Crim. (1946 and Supp. 1953) Nos. 29, 29-D, 30, 30-A) was not error since the evidence introduced without objection could be considered by the jury. (See People v. Wade, supra, 138 Cal.App.2d 531, 533; People v. Murray, supra, 135 Cal.App.2d 600, 603.) Further, although not raised by the deputy district attorney before the jury, there were other incidents in the record, admitted without objection, which fell within these instructions. When the last victim saw defendant in a public place and had him detained, she said, “This is the man that raped and kidnaped me.” Defendant made what might well be considered an equivocal answer to the direct accusation when he replied, “That gal is drunk.” Also, defendant’s testimony placing him at another location during one of the attacks was directly contradicted by his own statements made to the investigating police officers shortly after his arrest. The jury could have considered the latter statement as a false or contradictory statement showing consciousness of guilt.

Instructions

Defendant assails certain instructions given to the jury and challenges the trial court’s refusal to utilize some of the instructions offered by him. First, he complains that the standard instruction on consciousness of guilt and falsehood (Cal. Jury Instrns., Crim. (1946) No. 30-A) should not have been read because part of it pertains to situations where a defendant has “endeavored to procure false or fabricated evidence to be produced at the trial.” Defendant’s witnesses testified that he had spent the day of October 31, 1956, being the date of the last attack, at his sister’s home. On the other hand, defendant had been positively identified by the victim in her testimony as the person who committed the offenses in her home on that date. Furthermore, defendant had told the police following his arrest that he had been at specified places, other than his sister’s home, on the date in question. The jury could properly infer from this evidence that defendant had, in fact, procured false and fabricated alibi evidence with respect to October 31, 1956. There was therefore no error in giving the challenged instruction.

Second, defendant maintains that while the standard instruction to the effect that neither the prosecution nor defense is required to produce all available evidence (Cal. Jury Instrns., Crim. (1946) No. 23) correctly states the law generally, this case comes within a recognized exception. Defendant relies on People v. Beal, 116 Cal.App.2d 475, 479 [254 P.2d 100], where the court in a case involving the rape of a 13-year-old girl stated that, since the prosecution failed to produce the examining physician as a witness, it was to be “presumed that his testimony would not be corroborative of that given by the complaining witness.” Here, defendant points out that the brothers and sisters of the 14-year-old victim, who were in the house when defendant arrived but were not present when the criminal acts were perpetrated, and the escort of the last victim, who was with her when she encountered defendant in a public place and had him apprehended, were not called to testify. However, the Beal case is readily distinguishable. There, the testimony would have been highly material. The rape victim was examined by a physician the morning after the attack but the physician was not offered as a witness. Here, the witnesses could not have testified to any ultimate issues or essential elements of the crimes charged. Further, the reversal in the Beal case did not turn directly on the failure to call the physician. The court found that certain statements of the prosecuting attorney were highly improper. To show how this misconduct was prejudicial, the court looked to the even balance of the evidence. It was in this context that it stated the presumption. (116 Cal.App.2d 475, 477-479.) Instead, People v. Tuthill, 31 Cal.2d 92, 102 [187 P.2d 16], would seem to be controlling. There we said, “There is no compulsion on the prosecution to call any particular witness ... so long as there is fairly presented to the court the material evidence bearing upon the charge for which the defendant is on trial. ’’ (31 Cal.2d 92, 98.) This rule applies to the instant case, and shows that there was no error in giving the challenged instructions, which substantially reiterated the rule announced in the Tuthill case.

Third, defendant contends that by using the standard instruction on contradictory statements with its clause applicable when a defendant is a witness (Cal. Jury Instrns., Grim. (1946 and Supp. 1953) No. 54-A-alternate), the court unduly emphasized any contradictions made by defendant. He says that a general instruction should have been given pertaining to all witnesses, since one of the victims made conflicting statements about her assailant’s height. However, defendant fails to correctly analyze the alternate standard instruction. The first clause is identical to the instruction to be given when the defendant has not contradicted himself. (Cal. Jury Instrns., Crim., supra, No. 54-A.) The only difference is in the last sentence of the alternate instruction, which correctly states that a defendant’s own contradictory statements can be used beyond impeachment to show the truth of such statements. (See People v. Southack, 39 Cal.2d 578, 585 [248 P.2d 12].) This alternate instruction covers contradictions by all witnesses and does not place too great emphasis on defendant’s own statements. The court properly refused defendant’s own more general instruction, since the applicable law had been fully covered. (People v. Steccone, 36 Cal.2d 234, 240 [223 P.2d 17]; People v. Eggers, 30 Cal.2d 676, 688 [185 P.2d 1].)

Fourth, defendant interposes several objections to instructions on what the jurors could consider in fixing the penalties. He attempts to show uncertainty between two paragraphs of one instruction because the second did not repeat the number of the counts of the information in discussing them the second time. However, this could not have created any confusion in the minds of the jurors because the character of the offenses discussed in the second paragraph was clearly mentioned and the various counts had been fully explained in one of the preceding instructions.

Defendant also tries to show a conflict between two portions of the instructions which he believes could have only led to misunderstanding on the part of the jurors. He initially refers to the paragraph telling the jury not to consider the possible penalties on those counts other than kidnaping for the purpose of robbery with bodily harm. He then contrasts a small fragment of another instruction telling the jurors, “. . . it is your duty to conscientiously consider all the evidence in the case in arriving at your decision as to the penalty to be fixed by you in this case.” However, defendant has taken the latter quotation out" of the context of the instruction given by the court on the penalty for kidnaping for the purpose of robbery where bodily harm has been suffered by the victim. It correctly and clearly placed in the jury’s absolute discretion the imposition of either the death penalty or confinement for life without possibility of parole (Pen. Code, § 209) and permitted the jury to take all the evidence into consideration on this inquiry alone. These full instructions could not have confused the jury.

Defendant also asserts that the jury had no right to use all of the evidence in choosing between the two penalties. He says that it had to set the penalty by referring only to the evidence introduced on the particular count. He cites no authority for this proposition. Section 209, in committing this determination to the discretion of the jury, sets no limits. Rather, the language used in the instructions here seems entirely proper in the light of our decision in People v. Brust, 47 Cal.2d 776 [306 P.2d 480]. In affirming the death penalty for multiple murders, we there held that the jurors had been correctly instructed and that they were to select the penalty on the basis of “. . . a thorough consideration of all the evidence. ...” (People v. Brust, supra, p. 789; see also People v. Friend, 47 Cal.2d 749, 767-768 [306 P.2d 463].) Also, defendant claims that the following portion of the instruction about the penalty under section 209 was meaningless: “Insofar as selecting the penalty is concerned the law does not itself prescribe, nor authorize the court to innovate any rule circumscribing the exercise of your discretion, but, rather commits the whole matter of its exercise to your judgment and conscience.” This portion of the instruction was neither meaningless nor incorrect. (See People v. Friend, supra, 47 Cal.2d 749, 767.) It was but another way of telling the jurors that they were charged with the final determination of the penalty, and that they were to act within their own uncircumscribed discretion.

Fifth, defendant objects to the instruction covering the manner in which the jury was to proceed in its deliberations on those counts charging kidnaping for the purpose of robbery. He extracts two phrases and says that they were a misstatement of the law. However, the court was correct in telling the jury that they could consider the evidence and the possible consequences of the two penalties in determining the punishment defendant should receive. (See People v. Brust, supra, 47 Cal.2d 776, 789-790, n. 4; People v. Friend, supra, 47 Cal.2d 749, 767, 768.) The instruction as a whole presented an accurate summation of the process to be used in fixing the penalty for the violations of section 209.

Sixth, defendant contends that the instructions on the elements necessary to constitute a violation of section 209 were improper. However, the instructions were correctly based upon the statute and the rules enunciated in People v. Chessman, supra, 38 Cal.2d 166, 192. Also, defendant says that there was a mere detention involved here, and that the instructions on kidnaping under section 209 were inapplicable. However, there was far more than a mere detention here as hereinabove indicated.

Seventh, defendant urges that the court erred in failing to give a cautionary instruction to the effect that, in prosecutions for sex offenses, accusations are easily made and difficult to disprove, and that the testimony of the prosecuting witnesses should be carefully examined. Even if such an instruction is not requested, as here, it is incumbent upon the court to give one on its own motion. (People v. Nye, 38 Cal.2d 34, 40 [237 P.2d 1] ; People v. Willis, 129 Cal.App.2d 330, 336 [276 P.2d 853].) However, it is not always prejudicial error for the court to fail to give the instruction, since the circumstances of each case are the determinative factor. (People v. Nye, supra, p. 40; People v. Willis, supra, p. 337.) Here, seven of the eight prosecuting witnesses testified with a high degree of certainty as to defendant’s identification and criminal acts. Their testimony revealed a set pattern in which their assailant operated. To this extent their stories were mutually corroborative. On the whole, their narrations were completely consistent in all important repeats. The only possible discrepancy that defendant is able to show was where the 14-year-old victim was uncertain of defendant's height. Further, other substantial evidence connected defendant with the crimes. As was said in People v. Nye, supra, page 41: “A careful examination of the entire record in accord with article VI, section 4½ of the California Constitution, leads us to the conclusion that it is improbable that the jury would have rejected the testimony of the prosecuting witnesses had a cautionary instruction been given and that there has therefore been no miscarriage of justice requiring reversal of the judgment.”

Admission of Evidence on Rebuttal

Defendant makes two objections to evidence presented by the prosecution on rebuttal. First, he claims that a woman witness, who was not attacked, should not have been allowed to testify that defendant answered her newspaper advertisement offering an electric range for sale. She identified a check as having been given to her by defendant under an assumed name. Later, a handwriting expert expressed his opinion that the check was written by defendant. This chain of evidence was produced on rebuttal after defendant had denied on cross-examination all the essential facts of the incident. The practice of allowing the district attorney or his aides to withhold a part of their case in chief and to offer it after the defense has closed has been condemned in People v. Carter, 48 Cal.2d 737, 753-754 [312 P.2d 665], and People v. Rodriquez, 58 Cal.App.2d 415, 418-419 [136 P.2d 626]. But here the testimony was clearly introduced primarily for purposes of impeachment of defendant in his denial on cross-examination of an incident not charged in the information. In any event, no objection was made to the introduction of this evidence. Further, the order of proof rests largely in the sound discretion of the trial court. (Pen. Code, §§ 1093, subd. 4, 1094; People v. Byrd, supra, 42 Cal.2d 200, 211-212; People v. Avery, 35 Cal.2d 487, 491 [218 P.2d 527].) Where, as here, the desirability of admitting the testimony at the questioned point may be debatable, no abuse of discretion on the part of the trial court should be found when that court has not had the point brought to its attention. (See People v. Carter, supra, 48 Cal.2d 737, 754.)

Second, defendant claims that the expert testimony that defendant’s fingerprint was found on a glass at the home of one of the victims should not have been received on rebuttal. The prosecution had this information two days prior to the close of its case in chief. Again we come to the question whether the district attorney or his aides indulged in a proscribed withholding of matter properly belonging in their ease in chief. (People v. Carter, supra, 48 Cal.2d 737, 753-754; People v. Rodriquez, supra, 58 Cal.App.2d 415, 418-419.) An affirmative answer seems possible. However, under the facts of this case, a reversal is not warranted. To the extent that defendant may have been unfairly surprised, this was obviated by the granting of his request for additional time to meet this testimony. The fingerprint was probably not unduly magnified in significance, since it merely corroborated the direct testimony of one of the victims. It was not as crucial as the defendant’s confession withheld in People v. Rodriquez, supra, or the defendant’s apparel found near where the murder weapon was abandoned and withheld in People v. Carter, supra, a case resting entirely on circumstantial evidence. In short, it cannot be said that any claimed error in admitting this testimony on rebuttal warrants a reversal. (See People v. Byrd, supra, 42 Cal.2d 200, 212; People v. Avery, supra, 35 Cal.2d 487, 491.)

Constitutionality of Sections 1016 and 1026 of the Penal Code Providing for Bifurcated Trials on Issue of Insanity

At the inception of the trial, the deputy district attorney, while in chambers with the trial judge, the defendant, and defendant’s counsel, announced his intention to question the prospective jurors on their attitudes toward pleas of not guilty by reason of insanity. Defendant claimed the right to have a separate panel try the insanity issue and urged that defendant would be prejudiced by such voir dire examination. The trial court said that this was the only time that the jury could be so interrogated. Defendant then withdrew his plea of not guilty by reason of insanity. Defendant contends that he was forced to make this election because the jury, if so questioned, could only have gained the impression that he was guilty. He sees a denial of due process and of a fair trial because a defendant is required, in the discretion of the court, to submit the issue of insanity to the same jury which passed on the question of guilt (Pen. Code, §§ 1016, 1026) and which might not be impartial.

However, it has long been held that the proper time for the examination of the prospective jurors on the issue of insanity is during their selection at the beginning of the trial. (People v. Woods, 19 Cal.App.2d 556, 558 [65 P.2d 940]; People v. Foster, 3 Cal.App.2d 35, 39 [39 P.2d 271] ; People v. Davis, 94 Cal.App. 192, 197 [270 P. 715].) With regard to his assertion that the same jury could not approach the insanity issue objectively, the following language employed by this court in People v. Leong Fook, 206 Cal. 64, 78 [273 P. 779], is significant: “We must assume that a fair and impartial jury of intelligent men and women would obey . . . [their] instructions and would therefore hold in reserve their ultimate finding upon the issue of the defendant’s sanity until that separate issue and the evidence supporting it had, in the prescribed order of the trial, been committed to it for determination. We are not to assume that such a jury will cease to be fair and impartial as the cause progresses upon its successive issues, but, on the contrary, we must assume, in the absence of any other showing, that the jury has retained its attitude of fairness and impartiality under the changed procedure as before until the whole cause . . . has been determined.” This answers defendant’s basic premise that he would not have received an impartial trial on the insanity issue. Also, the same reasoning equally refutes defendant’s supposition that the jury could only believe that he admitted guilt by offering the plea of insanity. While these precise fair trial and due process arguments have apparently not been advanced before, it is important to note that sections 1016 and 1026 of the Penal Code have long been held constitutional despite many similar objections. (See People v. Daugherty, supra, 40 Cal.2d 876, 893, and the cases therein cited.)

Again we cannot say that the withdrawal of the insanity plea was “forced” upon defendant or that he was not sufficiently advised of the consequences of his decision. He was present in chambers when his attorney, the prosecutor, and the trial judge discussed the possible prejudicial effect of the challenged voir dire examination. In response to questions posed by his own counsel, he expressed his desire to withdraw his insanity plea and stated that he understood what had transpired. He was also informed that he could not reinstate the plea as a matter of right during the course of the trial. He might well have been additionally advised on other matters such as the nonbinding effect of the reports of the court-appointed alienists, defendant’s right to examine these experts and to produce his own witnesses to controvert their reports, and the jury’s power to make an independent determination. However, defendant was represented by counsel who initially entered this plea over his client’s objections. Surely, he must have explained to defendant the reasons for his actions. They must have weighed the probabilities of success on this defense in the light of the unanimous opinions of the three alienists to the effect that he was sane. Defendant and his counsel evidently decided that his cause would be better served by avoiding what they conceived to be the harmful effects of the proposed examination of the prospective jurors than by actually pursuing the insanity plea. This was a “free and voluntary” choice made by defendant with full advice of counsel. (See People v. Mendez, 27 Cal.2d 20, 22 [161 P.2d 929].)

Double Punishment

Defendant asserts that he suffered double punishment since he was sentenced for the kidnaping for the purpose of robbery and also for the robbery. However, it is not necessary to give extended consideration to this question. As we said in People v. Chessman, supra, 38 Cal.2d 166, 193: “Defendant is correct in his contention that punishing him separately for the violations of section 209 of the Penal Code (kidnaping) and for the robberies and sex crimes which, under the circumstanees here, are essential parts of those violations, would amount to double punishment, which is forbidden by section 654 of the Penal Code. [Citing cases.] However, since defendant is subject to two [here five] validly imposed death sentences, no purpose would be served by reversal of other judgments of conviction. [Citing cases.]”

Adequacy of Defendant’s Representation by Counsel

The only entirely new point raised in the amicus curiae brief concerns the adequacy of the representation afforded defendant by the attorney whom he selected to conduct his defense in the trial court. Two aspects of his trial counsel’s actions are specified as showing his lack of competence: His handling of the voir dire examination and his failure to object to some of the prosecutor’s conduct. His courteous deportment toward the deputy district attorney is said to have prevented him from protecting defendant’s rights. In handling the voir dire examination, he is said to have persistently emphasized that the prosecution’s witnesses were all honest and positive in their identifications, and that the burden of proof was east upon defendant to show his innocence beyond a reasonable doubt. Actually, he primarily stated that his client acknowledged that the acts were perpetrated and only contended that he did not commit them. His remarks could not possibly have had the untoward impact upon the jury attributed to them.

But even if we concede that defendant’s attorney may not have used the best of strategy in handling the voir dire examination and in failing to challenge some of the prosecutor’s remarks, defendant still has not made that type of showing which alone would compel us to conclude that he was deprived of due process within the meaning of the constitutional guarantees. (U.S. Const., 14th Amend., § 1.) The handling of the defense by counsel of the accused’s own choice will not be declared inadequate except in those rare eases where his counsel displays such a lack of diligence and competence as to reduce the trial to a “farce or a sham.” (Lunce v. Overlade [7th Cir.], 244 F.2d 108, 110; see also Taylor v. United States [9th Cir.], 238 F.2d 409, 413-414, cert. denied, 353 U.S. 938 [77 S.Ct. 817, 1 L.Ed.2d 761]; United States ex rel. Feeley v. Ragen [7th Cir.], 166 F.2d 976, 980-981; Hendrickson v. Overlade [N.D. Ind.], 131 F. Supp. 561, 562-564.) The record in this case does not even remotely approach such a situation. Defendant’s sole defense lay in his claim that his identification by the victims was incorrect. His counsel vigorously cross-examined the prosecution’s witnesses to test their memories, and assiduously attempted to establish an alibi and to show defendant’s good character. He at most committed what in retrospect may be claimed to be mistakes in judgment by following certain strategy employed. Such mistakes, if any, do not constitute a denial of due process. (United States ex rel. Darcy v. Handy [3d Cir.], 203 F.2d 407, 426, cert. denied sub nom. Maroney v. United States ex rel. Darcy, 346 U.S. 865 [74 S.Ct. 103, 98 L.Ed. 375].)

Motion to Augment Record

Defendant moves to augment the record pursuant to rule 12(a) of the Eules on Appeal by including a certified copy of the minutes of the municipal court before which the preliminary examination was conducted. That record is offered to show that defendant was not taken before the municipal court until nearly five days after his arrest. He claims that there was “unnecessary delay” (Pen. Code, § 849) and that his constitutional rights were thus violated, citing Mallory v. United States, 354 U.S. 449 [77 S.Ct. 1356, 1 L.Ed. 2d 1479], However, rule 12(a) on which defendant relies, by its own terms, provides for augmentation only where the record was “offered at or used on the trial or hearing below and [was] on file in or lodged with the superior court.” (Rules on Appeal, rule 12(a).) Here, defendant makes no showing that the minutes were ever used in the proceedings in the superior court or that they ever became a part of that court’s records. (See Estate of Hobart, 82 Cal.App.2d 502, 510 [187 P.2d 105].) Further, it would serve no useful purpose to add the requested document to the record since defendant cannot claim for the first time on appeal, as he attempts here, that he was not seasonably brought before a magistrate. (People v. Newell, 192 Cal. 659, 669 [221 P. 622] ; People v. Tennyson, 127 Cal.App.2d 243, 246 [273 P.2d 593].) The motion must therefore be denied.

In conclusion, it should be stated that the voluminous record and briefs have been carefully examined because of the seriousness of the charges made against defendant and because of the nature of the penalty that has been imposed upon him. Such examination leads us to the conclusion that the evidence overwhelmingly showed that he was guilty of the long series of despicable crimes with which he was charged. We further conclude that defendant was accorded a fair trial, and that there were no errors or other irregularities in the proceedings which would warrant a reversal.

The motion to augment the record is denied. The judgments and the order denying a new trial are affirmed.

Gibson, C. J., Shenk, J., Traynor, J., Schauer, J., and McComb, J., concurred.