Majority
Appellants were convicted in separate trials of first degree murder. Appellant Gregory Ulas Powell was sentenced to death and appellant Jimmy Lee Smith was sentenced to imprisonment for life. Each conviction has come to this court by way of a separate appeal. However, prior to the trial on the merits appellants were jointly prosecuted and almost all of the pretrial proceedings involved common appearances. Because the case arises from a single incident in which both appellants participated and because a majority of the issues on appeal pertain to joint legal proceedings, we dispose of the appeals in one opinion.
Facts
There are no substantial disagreements as to the factual background on which the charge against Powell and Smith is predicated. On March 9, 1963, Smith was a passenger and Powell was the driver of a 1946 Ford automobile. They were driving in the Hollywood area of Los Angeles County. Both men were armed.
The Ford automobile was noticed by two Los Angeles police officers, Ian Campbell and Karl Frank Hettinger. The officers were then assigned to a plainclothes detail in an unmarked 1960 Plymouth automobile. They observed that the 1946 Ford did not have an illuminated rear license plate. The police vehicle followed and the officers directed its red spotlight on the rear window of the vehicle occupied by appellants. Both vehicles made a stop on Gower Street. Campbell was the driver of the police vehicle and brought it to a stop an inordinate distance from the curb and directly behind the Ford. Campbell and Hettinger got out of the police vehicle. They approached the Ford. Campbell went to the driver’s side and Hettinger approached the passenger’s.
When Powell brought the Ford to a stop, Smith removed the hand gun on his person, dropped it to the floor of their automobile and kicked it under the seat.[1] Smith then got out of the Ford and approached Hettinger. Within seconds, Campbell, with Powell behind him, was also moving to the rear of the Ford automobile and approaching Hettinger and the police vehicle. Powell informed Smith and Hettinger that he had “gotten the drop on” Campbell. Campell verified this fact and in
During the course of the drive Smith and Powell, located in the front seat, pointed weapons at the police officers and made various threatening statements. Smith and Powell had their own hand guns, the weapons taken from the police officers, as well as the officers’ flashlights. Before reaching their ultimate destination Powell inquired as to the amount of cash Campbell and Hettinger had on them. He ordered Hettinger to give him his currency. Powell took it, but later returned it during the course of the drive. t
When they arrived in Kern County, and before reaching Bakersfield, Campbell was directed to turn on to a secluded dirt road and to drive out into a field. Finally, he was ordered to bring the vehicle to a stop and all four persons got out. Campbell and Hettinger were standing next to each other with Smith and Powell facing them. Powell then asked Campbell whether he had heard of the “Little Lindbergh Law.” Campbell replied affirmatively and Powell raised his gun and shot him in the mouth. Hettinger immediately turned and began to run. He ran down a dirt road, through a fence and into another field. While in flight he turned around and saw three figures: one of them prone, one firing a gun into the prone figure, and the third approaching him. The individual approaching Hettinger fired two shots at him. Hettinger resumed his flight.
Smith and Powell quickly gave chase after Hettinger. Powell took out on foot with a flashlight and Smith took the Ford automobile apparently to use its lights in the search for Hettinger. In the course of this effort Smith and Powell separated.[2]
2 In the separate trail of Powell there was no direct evidence as to what transpired between Smith and Powell after Campbell was first shot and Hettinger fled. Therefore, the jury could not know that Smith took the Ford automobile and left Powell on foot. Unlike Powell, Smith testified in the course of his trial on the merits and provided this information. In both trials, Hettinger testified that he was shot at and chased.
Powell was arrested during the early morning hours on the day after the homicide by a California Highway Patrol officer approximately 20 miles south of Bakersfield. He was then driving a vehicle that had been reported as stolen.
Further factual background will be given where necessary to explain and resolve the issues raised on appeal.
Appellants were previously tried, convicted of first degree murder and sentenced to death. That conviction was reversed by the California Supreme Court and remanded for retrial. (People v. Powell (1967) 67 Cal.2d 32 [ 59 Cal.Rptr. 817 , 429 P.2d 137 ].) Thereafter, appellants made numerous pretrial motions, including an application for change of venue and to quash the 1968-1 and 1968-2 jury venire. These motions were denied and another trial on the merits commenced against appellants in a joint proceeding. On the motion of Smith, his then trial counsel was discharged and the case was finally severed in order to permit Smith’s newly appointed counsel to prepare for trial. For that reason Smith’s trial on the merits was delayed to commence after and separate from the trial on the merits as to Powell.
We now turn to the issues raised on appeal designating the same by abbreviated titles and indicating to which appellant each issue pertains.
Smith and Powell Venue
Appellants argue that the Los Angeles Superior Court was without territorial jurisdiction and that venue was actually in Kern County. Appellants strenuously urge that Penal Code section 790 required that the trial be held in Kern County and that Penal Code section 781[3] is not
3 Penal Code section 781: “When a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or *119 requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory.”
The record plainly shows that the chain of events culminating in the death of Campbell commenced in Los Angeles County where appellants were stopped by the deceased and his partner Hettinger. At that time appellants “got the drop” on the officers, took their weapons, under threat of force compelled Campbell and Hettinger into the Ford automobile and ordered Campbell to drive the group to Bakersfield where Campbell was shot to death. Even if none of the events described prior to the shooting of Campbell constituted any element of the crime charged (Pen. Code, § 187), they were preliminary acts accomplished in Los Angeles County.
In this very case the Supreme Court determined that the “preliminary acts” were sufficient to fix jursidiction in Los Angeles County. (People v. Powell (1967) 67 Cal.2d 32 , 62-63 [ 59 Cal.Rptr. 817 , 429 P.2d 137 ].) Appellants urge that the Supreme Court’s construction is dictum and should not be followed. Whenever the Supreme Court interprets a statute other courts are obliged to follow it. (People v. Hallner (1954) 43 Cal.2d 715 , 720-721 [ 277 P.2d 393 ]; Steelduct Co. v. Henger-Seltzer Co. (1945) 26 Cal.2d 634 , 642 [ 160 P.2d 804 ].) In holding that Penal Code section 781 was applicable to circumstances where preliminary acts take place in one county and the perpetration of the crime occurs in another, the Supreme Court construed the legislative intent and purpose as broadening jurisdiction beyond rigid limits fixed by the common law. (People v. Williams (1973) 36 Cal.App.3d 262 , 268-269 [ 111 Cal.Rptr. 378 ].)
The holding as to jurisdiction in People v. Powell, supra, is not dictum. Even though it was not necessary for the court to address that issue to accomplish its result, confronting the subject was entirely consistent with the law. (Code Civ. Proc., § 43.) Since the reversal required a new trial it was appropriate to recognize and rule on this issue because it was bound to be a continuing problem: “Independent of the mandate of the code provision, the obligation rests on the court in the efficient and proper administration of the law to determine all questions legitimately submitted by an appeal. Justice so demands and the litigants are entitled to no less.” (King v. Kaplan (1949) 94 Cal.App.2d 697 , 700 [ 211 P.2d 578 ].) Therefore, jurisdiction was properly fixed in Los Angeles County because it was so determined in the earlier appeal and thereby became the law
Appellants also claim that they were deprived of their Sixth Amendment right to be tried by a jury of the “district wherein the crime shall have been committed,” as interpreted in People v. Jones (1973) 9 Cal.3d 546 , 554 [ 108 Cal.Rptr. 345 , 510 P.2d 7 .05]. This claim is distinct from the one decided by the Supreme Court on the previous appeal, which related only to venue. Strictly speaking, the Sixth Amendment right to a “jury of the vicinage” refers to the geographical area from which the jury is summoned rather than to the place of trial, the venue. In practical effect, however, the summoning of a jury from the vicinage usually requires that the venue be, at least in part, coterminous.[4] Thus, in California the requirement of section 198, subdivision 1, of the Code of Civil Procedure, that jurors be one-year residents of the county where they sit, would have made it difficult, to say the least, to have Kern County residents in a Los Angeles venire.
We are, of course, bound by the Supreme Court’s interpretation of the vicinage clause of the Sixth Amendment, insofar as it may be relevant to the facts of this case. Jones involved charges of selling marijuana. (Health & Saf. Code, § 11531.) According to the proof the offenses were committed entirely within the Central District of the Los Angeles County Superior Court. For certain administrative reasons the case was tried in the southwest district of that court, from which district alone the jurors were drawn. Applying the vicinage clause of the Sixth Amendment in the context of that prosecution, the court held that “. . . the rule quite simply is that a criminal defendant is entitled to a jury drawn from a jury panel which includes jurors residing in the geographic area where the alleged crime occurred.”[5] (Id. p. 554.)
4 The Judiciary Act of 1789 provided that capital offenses be tried in the counity of the crime, unless that could not be done “without great inconvenience.” In such a case at least 12 jurors were to be summoned from that county. ( 1 Stat. 73 , 88 (1789). See Blume, The Place of Trial in Criminal Cases, 43 Mich.L.Rev. 59 , 66.)
5 In footnote 7 of the Jones opinion, the Supreme Court states that its holding applies only to “those defendants who have made an appropriate timely challenge to the *121 jury panel in the trial court . . . .” {Id. p. 556.) (Italics added.) There is no question that both appellants made an appropriate, timely, Sixth Amendment challenge to a panel drawn entirely from Los Angeles County. Further, it is clear that its reiteration before us is proper in spite of the Supreme Court’s opinion on appellants’ previous appeal: the Sixth Amendment issue was simply not considered in that proceeding.
1. Although California statutory provisions concerning venue were satisfied even if only preliminary acts were accomplished in Los Angeles County, such preliminary acts do not necessarily satisfy the Sixth Amendment test set forth in People v. Jones, supra, which speaks of juries drawn from the “geographical area where the alleged crime occurred.”
2. Although there is a tremendous amount of evidence, direct and circumstantial, that elements of the crime of first degree murder were committed in Los Angeles County, the evidence to that effect is not 100 percent compelling. Thus, if the intention to take .Campbell’s life was not formed until the party reached Kern County and if the taking of any of the victims’ property in Los Angeles County was not accompanied by the required animus furandi (cf. People v. Butler (1967) 65 Cal.2d 569 , 573 [ 55 Cal.Rptr. 511 , 421 P.2d 703 ]), all the actual elements of first degree murder took place in Kern County.
3. The jury was never asked to resolve the conflict in the evidence.
4. Therefore, to rule in favor of the People on appellants’ Sixth Amendment point requires us to hold that a jury venire from which Kern County residents were systematically excluded—as, of course, they were by virtue of section 198, subdivision 1, of the Code of Civil Procedure— did not violate the Sixth Amendment under any view of the facts of this case.
We so hold. The factual situation in Jones was not even remotely similar to the one at bar, where a Los Angeles kidnaping directly and inexorably led to a Kern County execution, whether or not clemency was still in the cards when the county line was crossed. Jones involved three sales of marijuana. Each offense was confined to an intracounty judicial district from which no prospective jurors were drawn. The district where the case was tried and which furnished the entire venire had no" connection whatever with the alleged crimes: it merely had an available courtroom. We feel certain that the conviction would not have been set aside on “vicinage” grounds if, for example, Jones had journeyed into the
In Jones the Supreme Court was faced with the difficult problem of applying what was originally conceived as a right against the federal government in the context of a state criminal prosecution. After all, we do not have “districts”—the geographical territories mentioned in the Sixth Amendment—nor are we really faced with the evil which appears to have triggered the vicinage clause: the removal of- prisoners for trial in England.[6] Clearly, it was not confronted with the issue which we face: whether it is a violation of the Sixth Amendment to confine the summoning of jurors to a geographical area in which every act preliminary to the actual crime was committed, but in which the elements which technically constitute the crime did not occur.
Whatever may be the answer to that question from a constitutional point of view, it is clear that as a practical matter a slavishly literal reading of Jones—• “. . . area where the alleged crime occurred.” (Id. p. 554.) (Italics added.)—would either nullify the ameliorative provisions of section 781 of the Penal Code as interpreted and applied in People v. Powell (1967) 67 Cal.2d 32 , 62-63 [ 59 Cal.Rptr. 817 , 429 P.2d 137 ], or require the importation of jurors from one county into another—a practice in violation of section 198, subdivision 1, of the Code of Civil Procedure.
6 See Heller, The Sixth Amendment (1951) pages 92-93. There seems to be considerable historical evidence that at the time of the adoption of the Sixth Amendment the concepts of vicinage and venue were frequently confused. (See also Blume, The Place of Trial in Criminal Cases, 43 Mich.L.Rev. 59 , 65-66.) Centuries ago the vicinage concept appears to have developed as a necessary concomitant of the rule that jurors were to decide cases on their own knowledge. (Id. pp. 60-61.) That particular rationale for its retention is, of course, no longer valid. Indeed, it is quite difficult to pin down the values which the vicinage concept, considered in isolation, is designed to preserve. Not being a rule of venue, it does not insure a trial near the place where witnesses may be most readily available. Since crimes are often committed far from the accused’s county of residence, a jury of the vicinage need not be a jury of one’s neighbors. (See Burton v. United States (1906) 202 U.S. 344 , 388 [ 50 L.Ed. 1057 , 1074, 26 S.Ct. 688 ].) What one is left with is a right to have a jury which represents the offended community. (See Williams v. Florida (1970) 399 U.S. 78 , 100 [ 26 L.Ed.2d 446 , 460, 90 S.Ct. 1893 ]; cf. United States v. Groner (5th Cir. 1973) 479 F.2d 577 , 582-583.) More realistically—since the right is the accused’s—a jury from the vicinage may give the defendant a more sporting chance at “jury nullification” when the community is not offended though, in law, it should be. (See authorities cited in United States v. Dougherty (1972) 473 F.2d 1113 , 1130-1137, 1139-1144 [ 154 App.D.C. 76 ].) If the question of prejudice had anything to do with our problem, we very much doubt that any Kern County jury would have nullified the law of murder.
Smith and Powell Material Variance
The information charges in part as follows:
“That the said Gregory Ulas Powell and Jimmy Lee Smith, on or about the 10th day of March, 1963 at and in the County of Los Angeles, State of California, did willfully, unlawfully, feloniously and with malice aforethought murder Ian Campbell, a human being.”
Appellants direct our attention to the fact that the mortal wounds were inflicted and the homicide resulted in Kern County, California. This is the predicate to their claim of a material and prejudicial variance between the information filed and the evidence produced at trial. “No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” (Pen. Code, § 960.)
“The test of the materiality of a variance is whether the indictment or information so fully and correctly informs the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his
7 A harmless enough practice, when we consider that a federal district may be as large as an entire state.
8 See, for example, Johnston v. United States (1956) 351 U.S. 215 [ 100 L.Ed. 1097 , 76 S.Ct. 739 ]; Abrams, Conspiracy and Multi-Venue in Federal Criminal Prosecutions: The Crime Committed Formula (1962) 9 U.C.L.A. L.Rev. 751, 816.
The contention that this variance is prejudicial is specious. Appellants have failéd to demonstrate that they were misled in the preparation and conduct of their defense and the evidence heard and considered by the jury. Appellants were previously tried for the same charge. Both had the benefit of a preliminary transcript and a full trial transcript. In no way could they or their counsel have been misled as to the nature of the evidence that the prosecution would offer.
Smith and Powell Challenge to Jury Venire
Validity of Selection Procedure
On August 8, 1968, Smith and Powell made a pretrial motion challenging the entire 1968-1 and 1968-2 jury venires for Los Angeles County. Generally, the challenge was predicated on the contention that the composition of the jury venire did not thoroughly represent a cross-section of identifiable classes of persons within the community. Specifically, appellants asserted that members of minority groups and the lower socioeconomic elements were excluded from jury service.
It is important to understand that appellants’ primary assault was based upon an attempted showing that the actual number of persons selected for jury service from designated areas was so disproportionate to the expected probable draws that the burden of proving the legality of the venire shifted to the People. The demonstration was premised on the application of a statistical formula designated Chi square. This technique was employed to show whether or not a segment of the community had been chosen for jury service in numbers consistent with a random selection from the general population. In this case, appellants employed the Chi square formula in an effort to show that there was an improbable disparity between the number of certain minorities actually selected for jury service and their numbers in the general population for designated districts. Appellants contend that such disparity implies that a random selection of the jury venire was unlikely.
The evidence offered in support of the motion was profuse, redundant and frequently recondite. It required nearly six months for its production. No useful purpose would be served in making a detailed exposition of this evidence in this opinion. Therefore only pertinent parts will be set forth.
The Los Angeles Superior Court has as a part of its administrative staff a jury commissioner. (Code Civ. Proc., § 204a.) It was his responsibility to provide residents of the county to serve as jurors in cases conducted by the superior court. To implement the execution of this responsibility, the Los Angeles Superior Court adopted as a part of its official rules, rule 25. Selection of jurors.[9] This rule was in effect for the time period relevant to this action. Section 2 thereof has been the primary basis by which the jury commissioner proceeded with the selection of jurors. Following that provision he made his draw three times a year from the registered voters list of Los Angeles County. Specifically, the jury commissioner made an estimate as to the size of the venire that would be required and directed a request to the registrar of voters asking that a certain number of names be selected from specific precincts.
In making the selection from the register of voters the juiy commissioner used a key number system, selecting prospective jurors from every sixth precinct and having the registrar of voters draw every fifth name from each of the designated precincts. In order to avoid duplication in the source from which the jurors were drawn, if a precinct had been used in prior years it would be excluded until other precincts had been used.
This process results in two venires per calendar year. The challenge in the present action was addressed to both lists of jurors selected and approved for 1968 and identified as the “1968-1” and “1968-2” venire.
The jury commissioner called for a list of prospective jurors 10 times greater than that needed. This was done in anticipation that for every registered voter that qualified, nine would either not respond, be excused or not qualify.[10] For each of the 1968 venires the jury commissioner expected to need 8,000 qualified jurors. Therefore, he asked that the registrar of voters provide him with approximately 80,000 names. Using data processing to sort the index of registered voters, every fifth name was
9 Appendix, Exhibit 1.
10 Approximately 1 percent of those persons to whom a letter is directed do not respond. As to these persons, the jury commissioner takes no action. He deems the expense and inconvenience to exceed the value to be obtained. (See Adams v. Superior Court (1972) 27 Cal.App.3d 719 at p. 725, fn. 4 [ 104 Cal.Rptr. 144 ]; United States v. Hyde (5th Cir. 1971) 448 F.2d 815 at p. 827.)
The letters that were sent to those registered voters whose names were drawn advised them that they had been included on the list of prospective jurors and requested them to appear for an interview on a particular date. On the reverse side were instructions which informed the voter that if he was unable to perform jury duty for certain stipulated reasons he could request an excusal.[11]
Some prospective jurors used the reverse side of the advisory letter requesting exemption or excusal. If it appeared that the excuse was valid and was within the operation of Code of Civil Procedure section 200 or section 201 there was no follow-up. If the written request for excusal did not show on its face that it was within the operation of any statutory basis for exemption or excusal from service, a second request for additional facts was made. The additional information was obtained by way of written communication or by personal interview. If the prospective juror made a personal appearance he completed a personal data sheet and a prospective juror examination. He was then interviewed and the data sheet and the examination were reviewed by one of four interviewers.
At the time of the interview the prospective juror was informed of the rate of compensation and whether or not any of the information contained on the data sheet or otherwise obtained would exempt or excuse him.
Ultimately, the selection process provided a venire of qualified jurors. Their identities were compiled on IBM print-out lists and circulated among the members of the superior court. When a majority of the judges of that court signed the list it became certified.
We emphasize that the first step in the selection process is the random withdrawal of names from the list of those who have registered to vote within the county. This approach is unassailable. (People v. Sirhan (1972) 7 Cal.3d 710 , 749-750 [ 102 Cal.Rptr. 385 , 497 P.2d 1121 ]; People v. Murphy (1973) 35 Cal.App.3d 905 , 918-919 [ 111 Cal.Rptr. 295 ]; People v. McDowell (1972) 27 Cal.App.3d 864 , 869-870 [ 104 Cal.Rptr. 181 ].) The qualifications to register as a voter are substantially less re
11 Appendix, Exhibit 2.
In this case appellants asked that certain comparisons be made of the results of this selection process in four areas selected by appellants. Three of these areas constitute geographically defined districts within census reports prepared by the regional planning commission for the County of Los Angeles. These districts are identified as “Statistical Areas” and given identification numbers by the Regional Planning Commission. They are delineated in the exhibits offered by appellants and entitled “Quarterly Bulletin Population and Dwelling Units.” These are generally referred to as “Avalon,” “Boyle Heights” and “Watts” Districts. A fourth area was designated and geographically defined by appellants. This area was generally referred to as the “Mulholland District.” With respect to all four of the districts, the voter precincts used for the 1968-1 and 1968-2 jury venire were delineated by reference to the official councilmanic district maps obtained through the City Clerk for the City of Los Angeles. These four districts were identified on four exhibits offered by appellants and received into evidence. The precincts were indicated thereon. The Watts and Avalon Districts were selected because they are predominantly populated by members of the black community; the Boyle Heights District was selected because of the fact that it is heavily populated by persons with Spanish surnames; and the Mulholland District was an arbitrary designation of an area that is purported to be populated predominantly by “Caucasians.”
Watts: 1968-1 9; 1968-2 8
Avalon: 1968-1 17; 1968-2 16
Boyle Heights: 1968-1 19; 1968-2 18
Mulholland: 1968-1 16; 1968-2 17
Total precincts 61 59
In all of Los Angeles County there were at least 7,000 precincts. In the various attacks made by appellants on the selection process for the venire of Los Angeles County the court was asked to apply statistical equations that were predicated on samplings that pertain only to the populations within each of these districts. Essentially, this was an invitation to predict a determination based upon probabilities that were arrived at by comparing each of these districts with the others and with the County as a whole.
In support of the motion appellants called Nancy Ward for the purpose of offering certain demographic information. She was the research director of the Los Angeles County Human Relations Commission. She had conducted statistical analyses based on the McCone Commission’s Report to the Governor concerning the 1965 Watts riot. In that connection she spent three years making estimates of large minority population groups within the County of Los Angeles. Based on a variety of computations and formulations, Ward made certain estimates and projections as to the adult population for the designated areas within Los Angeles County and the county as a whole. These estimates and projections purported to produce population information covering the period for the jury selection of the 1968-1 and 1968-2 jury venires.
The source material used by her and upon which her conclusions were dependent included estimates, approximations and projections. Included in the material she referred to were 1960 census tract maps designating home values, family income and population characteristics of blacks. She also referred to the 1950 federal census figures, the 1965 special census report, the Quarterly Bulletin Supplement of Los Angeles County Regional Planning Commission, population data available through the City of Los Angeles and pupil protractions provided to the State Department of Education and pertaining to the County of Los Angeles in particular. Obviously, the conclusions reached by Ward required her to work with a variety of data, none of it really verifiable, and most of it probably not capable of being comparatively related. For example, the population figures of the county and city were in part based on the number of dwellings existing within the identifiable statistical areas. For the purposes of
12 The proceedings predate the adoption of article II, section 1, of the California Constitution added November 7, 1972, lowering the voting age from 21 years of age to 18 years of age.
13 Her estimates were: District Estimated Population Estimated Prospective Juror List Estimated Approved Juror List 1968-1 Boyle Heights 46,200 870 82 4/3/67 Spanish surname 23,300 558 53 1968-2 Boyle Heights 46,000 901 68 9/25/67 Spanish surname 29,900 578 44 1968- 1 Watts 12 ,400 230 22 4/3/67 Blacks 10,700 205 19 1968- 2 Watts 12 ,200 238 18 9/25/67 Blacks 10,700 218 16 1968-1 Avalon 25,100 476 45 4/3/67 Blacks 24,000 451 43 1968-2 Avalon 25,200 493 37 9/25/67 Blacks 24,100 468 35 1968-1 Mulholland 26,900 509 48 4/3/67 1968-2 9/25/67 Mulholland 29,900 509 40
Ultimately, appellants demonstrated that the number of qualified jurors selected for the period in question was less than the number estimated by Ward with respect to Avalon, Boyle Heights and Watts. By this demonstration, as will be more expansively discussed, appellants attempted to prove through statistical calculation that the probability of disparity was so great that it must be presumed to be the result of a systematic exclusion of members of the minority community.
It is appropriate to inquire why the particular sample areas were selected. The Los Angeles County 1960 census maps showed that there were several concentrations of minority populations and that the distributions of family income and home values were widely spread. Admittedly, the Los Angeles County 1960 census map entitled Population Characteristics of Negroes shows that the concentration within the Avalon and Watts Districts is black. However, the map indicates equivalent distributions in the Pasadena and San Fernando Valley areas. Additionally, it was not shown that this condition had remained static. The record does not reveal that the trial court was provided with evidence that the designated districts constituted a fair sample of the minority groups and the lower socioeconomic segment[14] upon which reliable statistical conclusions could be predicated. It is incumbent upon defendants who challenge the venire to make that showing.
Appellants also called Dr. Wayne Zimmerman to apply the projections of Ward concerning jury selection and composition. He used Ward’s esti
14 Determining who would be included in the “low-socioeconomic” strata is an elusive if not impossible task. It is true that appellants produced 1960 census tracts purporting to show median housing values and income distribution. The witness Ward referred to these in her calculations, but the trial court was not provided with any definition for this category and we can find none in the record. At the very least, it was incumbent upon appellants to define their terms.
It was stipulated that Zimmerman had been provided with certain IBM print-outs of the 1968-1 and 1968-2 prospective jury lists. This information consisted of, among other things, the actual precinct numbers, the total number of prospective jurors that were contacted, that responded and that qualified for the 1968-2 jury venire for each of the selected districts.
Using this information Zimmerman was cognizant of the actual number of prospective jurors that qualified for the 1968-2 jury venire. He used this as one factor in an equation for the purpose of attempting to demonstrate that the numbers of prospective jurors that qualified from Avalon, Boyle Heights and Watts were numerically deficient. The witness employed the Chi square formula. As mentioned, the formula required two factors for its computation: the observed number of jurors that qualified and the estimated number of jurors that would be expected to qualify as jurors within the designated districts. Zimmerman used the computed conclusions of Ward for the second factor, the expected number of qualified jurors.
In essence, the witness made these computations to produce a Chi square number which could then be referred to a standard table of Chi square values indicating a numerical probability for measuring the degree of expectancy for the actual number of approved jurors. Part of that is best demonstrated by the testimony of Zimmerman as follows:
“Q. By Mr. Maple: Does the Chi square calculation that you perform have anything to do with probability?
“A. Yes.
“Q. And what does it have to do with probability, doctor?
“A. A Chi square of this size or any size for that matter would occur by chance a certain number of times; therefore you can interpret a Chi square by indicating its probable occurrence, how many times it might be expected to occur during any given number of times.
“Q. How many times would it be expected to occur by pure chance?
“A. That is correct.”
District Observed Selected Jurors Probability of Occurrence
Avalon 25 .05
Boyle Heights 37 .0003 or .0004
Mulholland 43 .6
Watts 11 .1
Quite obviously appellants are attempting to fashion their argument after the opinion of the United States Supreme Court in Whitus v. Georgia (1967) 385 U.S. 545 [ 17 L.Ed.2d 599 , 87 S.Ct. 643 ]. There the Supreme Court was disturbed by a jury selection system operating in Mitchell County, Georgia, which appeared to systematically exclude blacks from grand and petit juries. In Mitchell County blacks constituted 27.1 percent of the tax digest from which jurors were selected. However, blacks constituted only 9.1 percent of the grand jury and 7.8 percent of the petit jury. The Supreme Court believed that this disparity, coupled with the fact that the tax digest was prepared under a segregated system, compelled the conclusion that blacks had been systematically excluded from the grand and petit juries. The important point for our purposes is that the Supreme Court took notice of the “probability” involved in this situation. A specific comment in Whitus is as follows:
“While unnecessary to our disposition of the instant case, it is interesting to note the ‘probability’ involved in the situation before the Court.
“The record does not indicate how many Negroes were actually on the ‘revised’ jury list of approximately 600 names. One jury commissioner, however, said his best estimate was 25% to 30%, which is in close proximity to the 27.1% who were admittedly on the tax digest for 1964. Assuming that 27% of the list was made up of the names of qualified Negroes, the mathematical probability of having seven Negroes on a venire of 90 is .000006. See Finkelstein, The Application of Statistical Decision Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 338 (1966).” (Whitus v. Georgia, supra, at p. 552, fn. 2 [17 L.Ed.2d at p. 605].)
The judicial system should pay attention to evidence that shows an
The problem is that appellants employed a spurious factor in arriving at this Chi square number. Specifically, Ward’s estimates were “soft” since they were arrived at without reference to the registered voter population and were otherwise largely speculative. The trial court was not required to accept these statistical conclusions unless it was persuaded that they were founded on substantially reliable data. (Cf. People v. Collins (1968) 68 Cal.2d 319 , 327-328 [ 66 Cal.Rptr. 497 , 438 P.2d 33 , 36 A.L.R.3d 1176 ].)
Smith and Powell Challenge to Jury Venire
Exemptions and Excusáis
Appellants challenge the method by which the provisions of Code of Civil Procedure section 201 were administered. In particular, issue is taken with the fact that the jury commissioner, by and with his examiners, has the authority to make a determination as to whether or not a person should be excused when he asserts that service would constitute a hardship or an inconvenience threatening his property or would be adverse to his health or the health and proper care of his family. Rule 25, section 3, authorized the jury commissioner to make this determination. This is consistent with the provisions of Code of Civil Procedure section 201a.[15] It is true that there was no specific criterion as to what
15 Section 201a, Code of Civil Procedure, provides: “In any county or city and county the judge of the superior court or a majority of the judges thereof may adopt written rules and regulations supplementary to such rules as may be adopted by the Judicial Council establishing a procedure whereby the jury commissioner of said county or city and county may be empowered to grant excuses from jury service to such prospective jurors who in the opinion of the jury commissioner qualify for excuses under Section 201.”
Smith and Powell Challenge to Jury Venire
Prospective Juror’s Examination
When prospective jurors personally appeared in response to the directive mailed to them, they were requested to fill out a personal data sheet and to complete a prospective juror’s examination. A copy of the examination is found in the Appendix.[16] Appellants urge that this examination systematically disqualifies inordinate numbers of racial minorities and the lower socioeconomic members of the community. As a backdrop to this problem, a brief history of the examination should be considered.
About 1935 Dr. Niel D. Warren was invited to prepare an examination at the instance of certain superior court judges. Warren was then professor of psychology at the University of Southern California. Presumably, the preparation of the examination was prompted by a concern to invoke the last two criteria of Code of Civil Procedure section 198:
“§ 198. A person is competent to act as juror if he be: . . . 2. In possession of his natural faculties and of ordinary intelligence and not decrepit; 3. Possessed of sufficient knowledge of the English language.”
16 Exhibit 3.
As ultimately drafted and employed the examination is in two parts, the first part consisting of a 25-word vocabulary test and the second part consisting of an eight-question reading comprehension examination. Warren recommended a single cutting score. That is, notwithstanding that the examination consisted of two parts, he intended that there be a single score which included a count of the number correct for both parts. He could not recall what that cut-off number was. It was his testimony that the cut-off number established was one to correspond to a certain level of general intelligence with the intention of failing only those who were distinctly below average in intelligence.
In 1967 the examination was administered and graded in two parts. In order to pass the examination it was necessary to obtain 17 correct answers on the first part and 5 correct answers on the second part. This is referred to as the successive cut-off method. The jury commissioner had used this successive cut-off method for all periods of time relevant to this record. When and why the successive cut-off method came into use is obscure. The examination as drafted by Warren continued in use without change except for the order in which the vocabulary words appear and a minor revision in two questions in the second part pertaining to modifications of jury instructions. As of the time of the pretrial motion, no studies had been conducted to determine the validity or reliability of this examination.
Dr. Burton Michael, a professor of education and psychology at the University of Southern California, informed the court that intelligence is an extremely “complex and multifarious” faculty. According to Michael, the ability to comprehend the meaning of words in printed context is a form of intelligence. He examined the juror’s qualification examination
Michael testified that there was a differentiation among socioeconomic levels insofar as they can be identified. The most salient observation as to testing in general was the following: “It is found, for example, that people who are of the Latin American race [s/c] and the Negro race typically, on the average, score somewhat lower on psychological tests than do people of the Anglo-Saxon or Caucasian group. Jewish people do better. Much of this is a function of the amount of education that individuals have had. Frequently, your Negroes and your Latin Americans have not had as much education, even though they may have had as many years; or they have not been associated with schools where a higher level of education is being given. “. . . The longer . . . Negroes have lived in large cities and have been associated with Caucasians and have attended their schools, the higher their I.Q. or intelligence tests are.”
His testimony emphasizes that education makes the difference. Michael did not offer an opinion as to whether or not the educational level of the prospective jurors for Los Angeles County was above or below the level of a person who has graduated from high school. He did proffer an opinion as to what one might consider if he undertook the difficult task of designing a test that would be adequate for the purposes of making a determination as to whether or not the criteria of Code of Civil Procedure section 198 had been met. We stress that he would require such a test to determine whether or not a juror could pay attention and whether or not he would be able to handle the vocabulary that is utilized by the lawyers in the courtroom or by the court when it was giving instructions. In other words, this educator and psychologist was not offended by the concept that jurors be qualified to function within the legal milieu.
In addition to rendering an opinion concerning probabilities predicated on the application of the Chi square formula as aforementioned, Zimmerman’s testimony was offered with respect to the evaluation of the jury qualification examination. In that regard, Zimmerman testified that he performed an analysis and study of the results demonstrated from certain IBM data print-out information concerning the performance of approved jurors selected at large for the 1968-2 venire and the results obtained by prospective jurors who were examined within each of the sample districts selected by appellants. An independent comparison was made with respect
Vocabulary Reading
rtt Mean Sigma N rtt Mean Sigma
C68 64 22.0 2.5 67 33 7.3 .9
C66 54 22.0 2.1 29 23 7.1 .9
C67 67 22.4 2.4 364 30 7.3 .9
Avalon 86 16.9 5.2 45 54 6,3 1.5
Boyle Heights 91 18.0 5.8 76 63 6.2 1.7
Mulholland 79 21.6 3.2 72 56 6.8 1.4
Watts 81 16.7 4.6 26 49 5.8 1.6
In the first column there is an identification of a selected random group and the four selected districts. The random groups being identified as “C” and then followed by the Arabic numerals 68, 66 and 67, simply to indicate that different keys were used to score the vocabulary examination. The second column, which is designated by an “rtt,” indicates the reliability score Zimmerman attributed to each of the examinations. In this context, reliability is defined as the dependability or consistency with which the measure will repeat the same result under similar circumstances. The third column indicates the mean average obtained by those examined, and the fourth column, designated by a sigma sign, represents the standard deviation. The numbers that appear in that column were the witness’ estimate of the dispersion or frequency of scatter of scores about the mean score.' The final column, designated under the letter “N,” indicates the number of persons taking the examination.
Obviously, there is a real disparity between the mean score and the standard deviation for the random selected groups and the specific districts upon which appellants focus attention. However, it must be emphasized that this study and analysis did not provide the hard data as to the number of persons passing and the number of persons failing. It does not reflect the same statistical information as was provided to the court in Carmical v. Craven (9th Cir. 1971) 457 F.2d 582 , 585. Without a doubt, the mean score differentials tend to support appellant’s assertion that prospective
Zimmerman expressed his own opinions concerning both parts of the examination. He testified that the vocabulary section was entitled to a reliability evaluation of .80 and .90; the eight-item reading comprehension section was entitled to a reliability evaluation ranging between .50 and .60. In simple terms, this expressed his opinion that the vocabulary test is of moderate reliability and would be normally acceptable for screening. He characterized the eight-item reading comprehension section as low in terms of reliability and not adequate for screening. In his opinion, the cut-off point of 17 in the 25-word vocabulary test eliminated a large number of people who have had only a grade school education and would eliminate a significant number of people who had not completed high school.
Zimmerman was most critical of the eight-item true-false reading comprehension test. Declaring that it would not be adequate for individual selection, he expressed the opinion that “roughly three-quarters to two-thirds of the variance of the test would be considered to be error by variance.” An error by variance is something that would happen by chance alone. Consequently, it could not be a meaningful obstacle to anyone but would constitute only a random and nonselective form of impediment. If the witness’ assessment of this part of the examination is correct, its operation would be purely happenstance among all segments of the community. Recalling that five correct answers are required with respect to this part of the examination, it is interesting to note that the mean score for all those tested is above passing and that the standard of deviation is relatively narrow.
Considering that this case involves a challenge to the entire jury venire
These data were compiled into four schedules. Each of the schedules represented one of the selected districts. The title of each schedule bears the name of each respective district to which it pertains (Avalon, Boyle Heights, Mulholland and Watts) and the further title “1968-2 Excusáis By Precincts.” These data were used by Zimmerman in his statistical analysis of the jury qualification examination. It will be recalled that he extracted from them the mean score and standard deviation for each of the prospective jurors tested within the selected districts. On reflection it is curious that appellants did not point to any specific comparative percentages or proportions indicating the pass/fail rate between whites and blacks- or any other distinguishable segments in these relatively small areas. Our curiosity is further aroused by the representations in declarations in support of a motion to quash the 1969-1 jury venire for the Central District.
This motion was filed on January 29, 1969. We stress that the motion to challenge the 1968 venire was definitely denied before appellants argued their second motion to quash the later venire approved by the judges of the Superior Court of Los Angeles County. This second motion was denied on January 31, 1969.[17]
17 Although the juries which tried appellants on the merits were drawn from a 1969 venire, the denial of an opportunity to challenge that venire is not claimed to have *140 been error. If it were, the point would have no merit. Appellants started to present the challenge to the 1968 venires in August, 1968. When their prolix presentation was over on January 29, 1969, the 1968 jurors presumably had been excused. If it were the law that by dragging out the challenge to a particular venire until it becomes moot a defendant is automatically entitled to start again on the next venire, he could avoid going to trial forever. There is no indication in the record that the procedures challenged with respect . to the 1968 venire were changed for the 1969 venire to appellants’ detriment. We therefore deem the challenge to the 1968 venires as not having become academic, assuming—as do the parties—that similar selection procedures resulted in similar venire composition.
This offer of proof illustrates the kind of evidence which was not produced in support of the challenge to the 1968 venires. Having in mind the enormous effort and expense devoted to that challenge, the trial court would have been justified in wondering just why appellants chose not to produce evidence concerning the racial characteristics of the relatively few jurors from the four chosen sample areas who passed and failed the test.
As a matter of fact, appellants’ submissions to us do not even summarize
18 Note that the districts identified in the offer of proof in support of the second challenge to the venires were not the ones involved in the challenge that was heard.
District Total Examined Total Fail Percentage of Fail Percentage of Pass
Avalon 84 15 17 83
Boyle Heights 159 22 13 87
Mulholland 101 7 6 94
Watts 39 10 25 75
Looking at these figures without the benefit of statistical guidance, it is, of course, apparent that the prospective jurors from the Mulholland District did better on the examination than those from the other three test areas. At the same time, it should be noted that the differences were nothing like those involved in Carmical v. Craven (9th Cir. 1971) 457 F.2d 582 at page 585, where the fail rate in a predominantly black area was 81.5 percent, while that in a white area was 14.5 percent; nor do the figures reveal as drastic a difference in result as those appellants wanted to produce with respect to prospective Long Beach-San Pedro-Wilmington jurors.
We do not, of course, suggest that satisfactory proof that a juror qualification test which systematically excludes about three times as many blacks as whites is .not suspect under certain circumstances. We do, however, point out that even appellants do not argue that their proof takes us that far. In this, they are wise: First, the sample areas are pitifully small compared to the total eligible population; second, we just do not know—though the proof could have been procured—how many of the 25 prospective jurors who failed from the Avalon and Watts areas were actually black or, conversely, how many of the 94 who passed from the Mulholland area were really white; third, no expert statistical evidence which might have overcome these defects was offered. As we said in Jones: “. . . raw statistical data without expert interpretation can be extremely misleading.” (People v. Jones (1972) supra, 25 Cal.App.3d at p. 786.) Appellants apparently realize that we would not be misled and therefore, it seems, have not attempted to do so.
Notwithstanding the torrential character of the appellants’ attack on the jury qualification examination, it is not sufficiently complete or connected to prove that its use in the selection process of jurors actually
Powell
Challenge to Jury Venire
Standing to Make Motion
Even though we have considered the motion to quash the jury venire as if both Powell and Smith had standing to make that motion, we have not ignored the contention of the People that Powell has no such standing. (See People v. Sirhan (1972) 7 Cal.3d 710 , 753-754 [ 102 Cal.Rptr. 385 , 497 P.2d 1121 ].) Powell is not black, as is Smith. However, it is not necessary to address that issue since we have determined that the motion should be denied in any case.
Smith and Powell
Plea of Once in Jeopardy
Smith and Powell contend that their prior conviction, reversed by the California Supreme, Court, constitutes a perfect defense of double jeopardy and is established as a matter of law. (U.S. Const., Amend. V; Cal. Const, art. I, § 13.)
Appellants included with their respective pleas of not guilty pleas of prior conviction and prior jeopardy. (Pen. Code, § 1016, subds. 4, 5.) The People moved to dismiss these defenses. Appellants counteracted by offering to put in evidence before the jury the entire transcript of the first trial. Additionally, Smith proposed to call all of the jurors who participated in the first trial and many other witnesses. Ultimately, the court ordered the pleas of prior conviction and prior jeopardy stricken.
Smith and Powell contend that the defense of prior jeopardy is valid, resting their conclusion on two premises. The first is that the need for a second trial was the product of deliberate and intentional misconduct on the part of the prosecution. The second has as its core the following proposition: having been convicted of first degree murder and sentenced to death in the first trial, their appeal was mandatory and not initiated by them and consequently cannot be deemed a waiver of the double jeopardy defense.
Appellants’ contention that the reversal of the first trial was the product of a mandatory appeal pursuant to Penal Code section 1239, subdivision (b) and thus not the product of any appellate process initiated by them has some superficial plausibility. In general, a defendant’s appeal from a judgment of conviction constitutes a waiver of the double jeopardy defense. (1 Witkin, Cal. Crimes (1963) § 215, p. 206.) From this proposition appellants conclude that where the appeal is mandatory and not specifically requested by the defendant, it cannot constitute a waiver. It is true that Penal Code section 1239, subdivision (b) is mandatory and cannot be waived by the defendant. (People v. Stanworth (1969) 71 Cal.2d 820 , 833 [ 80 Cal.Rptr. 49 , 457 P.2d 889 ].) But the appeal is certainly not detrimental to the defendant. On the contrary, a substantial benefit is afforded by this procedure, both to the accused and to society, when the most severe of all penalties has been imposed. It is not logical that its provisions should operate to the benefit of the accused and to the detriment of society. (Cf. Gori v. United States (1961) 367 U.S. 364 , 366-369 [ 6 L.Ed.2d 901 , 903-905, 81 S.Ct. 1523 ].) The fallacy of appellants’ contention is fully exposed if the alternative is pondered. It is unbelievable that Smith and Powell would have foregone the appellate process and elected to proceed directly to the gas chamber.
These appellants are not the first to urge such sophistry. People v. Quicke (1969) 71 Cal.2d 502 [ 78 Cal.Rptr. 683 , 455 P.2d 787 ], is a case in point. People v. Quicke was an automatic appeal under section 1239, subdivision (b) of the Penal Code. The case had been appealed to the Supreme Court once before.[19] On both occasions the imposition of the death penalty was reversed. One of Quicke’s contentions was that he had been placed in prior jeopardy of death at the first penalty trial:
19 The first appeal, People v. Quicke (1964) 61 Cal.2d 155 [ 37 Cal.Rptr. 617 , 390 P.2d 393 ], was also an appeal pursuant to Penal Code section 1239, subdivision (b).
“Defendant finally contends that he has been once placed in jeopardy of death because in the absence of errors at the first penalty trial a more favorable result to defendant was reasonably probable. The contention cannot stand; we set aside the judgment in the first penalty trial at the request of defendant. [Citations.]” (People v. Quicke, supra, p. 524.)
People v. Quicke, supra, is prima facie authority for the proposition that that mandatory appellate provision pertaining to capital cases does not serye as the predicate for a defense of prior jeopardy.
We conclude that the striking of the pleas of prior conviction and prior jeopardy was not error. At oral argument, respective counsel for each of the appellants conceded that the prosecution’s evidence was substantially the same in the second trial as it was in the first. There is nothing to show that there is any factual conflict attending this question. Therefore, the matter was properly determined as a matter of law. (People v. Ramirez (1972) 27 Cal.App.3d 660 , 670 [ 104 Cal.Rptr. 102 ].)
Smith and Powell
Denial of Hearing on Motion to Disqualify Judge (Code Civ. Proc. § 170, Sued. 5)
Each appellant filed a motion to disqualify Judge Thomas W. LeSage. The motions were predicated on an alleged bias, prejudice and incapacity to provide a fair trial to appellants. (Code Civ. Proc., § 170, subd. 5.) Judge LeSage responded by a formal and unequivocal denial. Judge Walter R. Evans was appointed by the Chairman of the Judicial Council to resolve this issue. Judge Evans determined and found that Judge LeSage was not biased or prejudiced in any manner whatsoever against Powell or Smith. Judge Evans decided the motion without a hearing and with reference to the written declarations only. Appellants claim that they were entitled to a hearing. We do not agree. (1 Witkin, Cal. Procedure (2d ed.) § 85, p. 359.) As to Smith, the issue is a red herring in view of the fact that his case was ultimately severed and tried before another judge.
Excusal of Jurors for Cause Because of Opposition to the Death Penalty
Powell asserts as error part of the voir dire conducted by the court and counsel to determine whether or not members of the jury panel had con
With respect to both issues we are governed by the holding, adverse to appellants, in People v. Rhinehart (1973) 9 Cal.3d 139 , 155 [ 107 Cal.Rptr. 34 , 507 P.2d 642 ].
Powell
Speedy Trial
Powell argues that he has been denied the fundamental constitutional right to a speedy trial. We recognize that this right is afforded to him by article I, section 13 of the California Constitution and the Sixth Amendment to the Constitution of the United States. (Klopfer v. North Carolina (1967) 386 U.S. 213 [ 18 L.Ed.2d 1 , 87 S.Ct. 988 ].) Powell stresses that he was originally charged on April 2, 1963, and the selection of a jury for his second trial on the merits did not commence until April 7, 1969. While this time span is striking, it is not the measure of whether or not Powell has been denied his right to a speedy trial as guaranteed by either the federal or state law. We again take notice that the original charge of 1963 resulted in a conviction and an appeal resulting in reversal and remand for trial. (People v. Powell (1967) 67 Cal.2d 32 , 63 [ 59 Cal.Rptr. 817 , 429 P.2d 137 ].) Accordingly, a remittitur was issued from the Supreme Court and filed with the trial court on September 1, 1967. It is from the date of the filing of the remittitur that the determination concerning speedy trial is measured. (People v. Griffin (1971) 15 Cal.App.3d 442 , 449 [ 93 Cal.Rptr. 319 ].)
In Barker v. Wingo (1972) 407 U.S. 514 [ 33 L.Ed.2d 101 , 92 S.Ct. 2182 ], the United States Supreme Court turned to the heart of the problem. It recognized the lack of definition in this area and set forth guiding criteria for determining if the federal mandate under the Sixth Amendment is violated:
“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them
in different ways, we identify four such factors: Length of delay, the reason for delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Barker v. Wingo, supra, at p. 530 [33 L.Ed.2d at pp. 116-117].)
Turning to the law of this state, we initially acknowledge that the Legislature has provided a specific measure that is applicable to this case in Penal Code section 1382. Its relevant part reads as follows:
“The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases:
“2. When a defendant is not brought to trial in a superior court within 60 days after ... the filing of the remittitur in the trial court; except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, or because of his neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.”
In the absence of a waiver or showing of good cause Powell was entitled to have his case set on or before October 31, 1967. The trial was originally set for October 17, 1967; well within the time limit.
California’s resolution of claims of error "predicated on a denial of speedy trial has traditionally turned on whether or not the particular case was a preconviction or post-conviction matter. If the right was violated prior to trial and the limitation of Penal Code section 1382 expired, the defendant’s remedy was to move for dismissal. In the absence of a specific waiver or a showing of good cause for delay, the defendant could petition an appellate court with some degree of confidence; but if the statutory time limit was exceeded and the matter went to trial resulting in a conviction, the violation of the constitutional provisions and the Penal Code section noted were looked upon with less benevolence. In these latter instances it was not sufficient to demonstrate that the prosecution had failed to bring the matter to trial within the time provided by law but it was incumbent upon the defendant to demonstrate that the delay had in fact resulted in prejudicial error.
The expansion of the right to a speedy trial in California has fairly paralleled the current progressions of the United States Supreme Court. (Jones v. Superior Court (1970) 3 Cal.3d 734 [ 91 Cal.Rptr. 578 , 478 P.2d 10 ].) The most recent and relevant explication of speedy trial in
At the core of Powell’s claim of undue delay is the fact that he was relieved of his pro per status and was not allowed to act as his own counsel.[20] Because of this, Powell refused to give his personal consent to any continuances. On September 20, 1967, the Public Defender of Los Angeles County was appointed to represent Powell. Much of the protraction of the case was due to the need of Powell’s counsel for continuances. Additional time was consumed in pretrial motions made by the defense. On October 11, 1967, Deputy Public Defender Charles Maple informed the court that Powell’s case was assigned to him and that he could not be prepared to provide effective representation at the trial date of October 17, 1967.
20 The following is a chronological history of how Powell came to be represented by counsel: 1) 9/1/67: Remittitur filed: Attorney Kanarek appointed for Smith; proceedings continued to September 6th 2) 9/6/67: Public defender appointed for Powell, cause transferred to Department 100 for appearance on September 8th for trial setting; 3) 9/8/67: Powell moved “to relieve the Public Defender and to appear in propria persona”; motion denied; trial set for October 17, 1967, in Department 103; 4) 9/15/67: On the request of Powell cause was advanced from September 17, 1967, and Powell moved to be permitted to appear in propria persona. The motion was granted and the public defender was relieved; the cause was continued to September 20th for further motions to be made by Powell; 5) 9/20/67: Powell interposed numerous motions pertaining to pro per privileges. Additionally, he moved the court for the appointment of advisory counsel. These motions were made orally and in writing. In support of his motion for advisory counsel, Powell advised the court as follows: that he required help in making contact with “more than twenty witnesses” and that it was necessary to observe their demeanor when interviewed. He acknowledged that he required “the help, support and assistance and professional skills of counsel to render him aid.” He importuned the court by declaring “that a fair trial requires that he have the right to appointed counsel to advise him whether to testify; and if he does, to represent him both on direct and on cross-examination”; he conceded that “counsel could give Powell sound advice as to laws and facts, courtroom ethics and, in at-the-bench motions, give the Judge confidence in the grounds urged by the defense; and counsel would aid the Court and Powell in the expeditious conduct of the Court’s business”; the court reconsidered the propriety of its earlier ruling to allow Powell to proceed in pro. per. and vacated its earlier order affording that status. The public defender was reappointed to represent Powell; 6) 10/11/67: The matter was advanced on the court’s calendar at the instance of Powell and the deputy public defender, Charles Maple, who was assigned to represent Powell. Mr. Maple moved to be relieved as counsel for Powell and Powell joined in the motion and requested that he be permitted to appear in propria persona. These motions were denied. The court made a specific finding that he was not competent to represent himself.
The public defender put this problem in its proper perspective by the following statement:
“My own personal feeling, apart from Mr. Powell, is that his right to a speedy trial in that sense is, as I have said, subordinate to his right to a fair trial, and I don’t see how he can have his cake and eat it too. I would not want to burden the court with more dialogue on that particular point.”
The motion was granted and the matter was continued to December 21, 1967. Thereafter, the trial date was extended on numerous occasions. It is appropriate to recognize that at the time of these motions the law on the right of a defendant to appear in propria persona and without counsel was in a state of confusion and conflict. As this case amply demonstrates, the trial court was confronted with the difficult problem of procedurally navigating this case to avoid the Scylla of delay and the Charybdis of ineffective and inadequate representation.
The record reflects that the protraction was due to legitimate conflicts with Maple’s trial calendar or attributable to pretrial motions initiated by appellants. On January 9, 1968, the cause was transferred to Department 78 (Judge Arthur L. Alarcon) for trial to commence on January 22, 1968. On that date the case was called and Powell and Smith moved to sever. The matter was argued and continued to the next day for further pretrial proceedings. On January 23, 1968, Maple informed the court that he
21 Mr. Maple addressed the court as follows: “Mr. Maple: Yes. Well, I won’t prolong the discussion there, but I have urged upon Mr. Powell that if I should remain his counsel, that I feel that it is in his best interests to waive his right to a speedy trial in the sense that it is speedy within the framework of section 1382 of the Penal Code, the 60-day rule, from the time the remittitur came down; because in fairness to him, and doing justice to his cause, I do not feel that it is possible to go to trial within the 60-day period. It is just physically impossible, and were I even to have assistance from my own office, as Mr. Busch apparently has, and I do not at this point even request that because it isn’t a question of having assistance, but it is a question of just getting through the bulk of the materials that have to be gotten through. “So I have urged upon him that he waive time and permit me to prepare adequately so that he may have a fair trial, my contention being that a fair trial is much to be preferred to a speedy trial; and that certainly if I do not have adequate time to prepare it, he would undoubtedly attack me and my competence later on under the Ybarra case and quite readily so for being inadequately prepared. “So I am on the horns of a dilemma, and I can’t accommodate his need for a speedy trial in my desire to properly represent him as counsel; and yet, despite that, Mr. Powell apparently feels that he cannot waive time. I asked him again this morning.”
As a consequence of the peremptory challenge of March 14, 1968, the matter was returned to the Calendar Department to be reset for trial. The court observed that the discharge of counsel for Smith was before the Supreme Court on a writ of prohibition and was informed that the matter would not be heard until April 12, 1968. In that context, the calendar judge severed the two cases, retaining April 1, 1968, as the trial date for Powell and assigning it to Department 101 (Judge Herbert V. Walker) and continued Smith’s trial to May 13, 1968, in Department 105 (Judge Howard H. Schmidt).
On the motion of Powell the matter was advanced from April 1, 1968, to March 27th, at which time Powell’s counsel moved for a continuance. He informed the trial court a continuance to April 22, 1968, was necessary in order to implement the psychiatric investigation of the two doctors appointed by the court to assist in Powell’s defense. The court inquired as to whether or not Powell personally waived time. The court was informed of the anomaly that Maple deemed the additional time necessary for the preparation of his client’s defense but Powell refused to join in the waiver of time.[22] The absurdity was magnified by the fact that at that
22 “It is my position that defendant’s right to a speedy trial must be subordinate to his right to a fair trial and if he were forced to trial with counsel that is not prepared, in effect, he would not be represented by counsel at all.”
On May 13, 1968, counsel for Smith was reinstated and Maple informed the court that he was engaged in another trial but anticipated making a further pretrial motion in this case pursuant to Penal Code section 1538.5. On May 21, 1968, Powell’s case was on calendar for the purpose of hearing his motion to suppress evidence. On the same calendar was the People’s motion to consolidate Powell’s case with the case against Smith. On May 22, 1968, the motion to consolidate was granted. The court proceeded with Powell’s motion to suppress evidence. Smith joined in that motion. The motion was concluded adversely to Powell and Smith on June 3, 1968. At that time the case was transferred to another trial department, Department 78 (Judge Alfred P. Peracca), for further proceedings on June 6, 1968. The trial was continued to June 10, due to a congested calendar. On June 10, 1968, the matter was called for trial and more pretrial motions were initiated by each of the appellants. These pretrial motions covered a wide variety of subjects, including the right to separate juries, the adequacy of the jail facilities and jail privileges being provided to defendants, prior jeopardy, exhumation of Campbell’s corpse, and other matters. On August 8, 1968, Powell and Smith moved to quash the entire 1968-1 and 1968-2 jury venires. The taking of evidence and the argument in support of this motion covered a period of nearly six months and was not concluded until January 29, 1969. Judge Peracca who had entertained all of the pretrial motions from June 10, 1968, to January 31, 1969, including the challenge to the jury venire, withdrew from the case for rea
Obviously, Powell’s claim that he was denied a speedy trial is rooted in his assumption that he had a right to proceed in propria persona. That assumption is not supportable in law. The question of whether or not a defendant had a constitutional right to appear pro se was disposed of in People v. Sharp (1972) 7 Cal.3d 448 [ 103 Cal.Rptr. 233 , 499 P.2d 489 ]. In that case the Supreme Court grappled with the practical problem faced by trial courts. Recognizing this dilemma the court indicated that the primary concern must be with overall due process considerations. Sharp clearly holds that the right to self-representation is not of constitutional dimension by itself. To the same effect, see Drumgo v. Superior Court (1973) 8 Cal.3d 930 , 934-935 [ 106 Cal.Rptr. 631 , 506 P.2d 1007 ]. This is not to say that the nearly 20 months between the filing of the remittitur and the commencement of trial does not have the appearance of undue protraction. However, on examination it becomes apparent that the delay in this case is the product of counsel’s need to prepare for this complex and difficult murder case and the myriad procedural maneuvers of the defense. The record amply demonstrates that Powell was afforded a highly qualified, competent and imaginative attorney. In providing him with counsel it was incumbent upon the court to nominate an advocate who was thoroughly competent to handle a capital case. Such lawyers are almost continuously in trial and calendar conflicts are not extraordinary. Consequently, the continuances that were granted as a result of Powell’s counsel being engaged were with good cause. Furthermore, the record is replete with pretrial motions challenging venue, jurisdiction and challenges to no less than four trial judges. The People cannot be charged with the time consumed in the interest of Powell. At all times the People were prepared to proceed to trial. As we perceive this argument, we are reminded of the
“Although a criminal defendant may not be deprived of a speedy trial because the prosecution—or the defense—is lazy or indifferent, or because the prosecution seeks to harass the defendant rather than bring him fairly to justice, a criminal defendant may not juggle his constitutional rights in an attempt to evade prosecution. He may not demand a speedy trial and demand adequate representation, and, by the simple expedient of refusing to cooperate with his attorney, force a trial court to choose between the two demands, in the hope that a reviewing court will find that the trial court has made the wrong choice. ‘We cannot tolerate such bad faith and we are not constitutionally required to do so. [Citations.]’ (People v. Smyers, 261 Cal.App.2d 690 , 700 [ 68 Cal.Rptr. 194 ].)”
Powell claims that an additional cause for delay was the fact that the case proceeded jointly against both defendants. Various motions to sever were made by each of the defendants. The presentation, consideration and ruling on these motions contributed to the extension of the trial date. Notwithstanding the fact that the cases were ultimately severed, the court’s prior denials of these motions were not error. Joint trials are favored and should not be disavowed on the basis of hindsight only. (People v. Perry (1925) 195 Cal. 623 , 630-633 [ 234 P. 890 ].) Statutory policy favors joint trial. (Pen. Code, § 1098.) The circumstances of this case were particularly suited for a joint trial. Appellants were present during all of the activity that constituted the preliminary acts and the elements of the offense charged. (Pen. Code, § 187.) That distinguishes this case from People v. Clark (1965) 62 Cal.2d 870 [ 44 Cal.Rptr. 784 , 402 P.2d 856 ], cited by Powell. Furthermore, the People represented that the prosecution would not use any extrajudicial statements and would avoid the conflicts that are delineated in People v. Aranda (1965) 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ]. In view of those circumstances, joint proceedings cannot be deemed an unjustifiable cause of delay.
We do not find that the delay was inordinate in light of the complexity of the case, the gravity of the charge and the reasons for the continuances. We do not find that the delay is attributable to the conduct of the People. Finally, we observe that Powell- has failed to draw our attention to any fact that demonstrates that any delay resulted in the loss of evidence available to him.
We therefore reject Powell’s claim of error based on denial of federal or state constitutional right to speedy trial. The trial court properly denied
Smith
Prompt Arraignment
The arraignment of Smith following his arrest did not comply with the provisions of Penal Code section 825. It was extended one day beyond the statutory mandate. It is a circumstance that arose prior to the first trial and appeal. In remanding this case for a second trial the Supreme Court implicitly determined the error to have been without irreversible prejudice. (People v. Powell (1967) 67 Cal.2d 32 , 59-60 [ 59 Cal.Rptr. 817 , 429 P.2d 137 ].) The opinion of the court makes it abundantly clear that it was aware of the delay.
Smith argues that strict compliance with Penal Code section 825 would have afforded his counsel an opportunity to interview Hettinger before the representatives of the People did so. Just how that would have benefited him is not clear. There is nothing in the record that indicates that Hettinger’s testimony was contrived. Hettinger was subjected to the test of cross-examination at two trials. That is sufficient.
Smith pursues this issue by implying that Hettinger was not competent to testify at the second trial. Specifically, he claims that an interview with Hettinger after the arrest was essential because his competency to testify became emotionally eroded with the passage of time. During pretrial proceedings, Smith’s counsel made reference to a report in his possession from the police department workmen’s compensation board. He asserted that the report indicated that Hettinger suffered from an emotional disability because of his experience in the events that underlie this case. Presumably, this information remained available to Smith for whatever value it may have had in challenging the competency of the witness or impeaching his testimony. The record is barren of any evidence that the report of the police department workmen’s compensation board would have affected Hettinger’s testimony or caused the jury to discount it. In fact, if the jury were informed that Hettinger’s mental health had been adversely affected by the events in question, it is more probable that Smith’s case would have been prejudiced than enhanced. Admittedly, if the report showed that" Hettinger was incompetent and lacked the capacity to testify, that issue would have been taken up out of the presence of the jury. However, the issue was not raised at trial and we have no glimmering as to whether or .not it supports the assertions of Smith’s
Appellant’s effort to breathe life into this exhausted ground for appeal by claiming that -the one-day delay obstructed his efforts to have an early and essential interview with Hettinger is preposterous.
Powell
Evidence of Previous Parole
Powell contends that the introduction into evidence of the fact that he had been previously convicted of a felony, incarcerated in a state penitentiary and subsequently released on parole was error. Basically, the premise for the challenge is twofold. It is contended that the admission of the evidence violated Evidence Code section 1101 and that, in any event, it was highly prejudicial.
The record shows that the presentation of the evidence condemned by Powell was relatively sterile. It amounted to substantially no more than the foundational testimony by an employee of the Department of Corrections for the purpose of authenticating appellapt’s criminal record in general and the documentation of his parole in particular. This focused the jury’s attention on the fact that Powell was on parole and was subject to certain prohibitive conditions, some of which were, without question, violated at the time that Campbell and Hettinger first made contact with appellant. The People’s obvious purpose was to show Powell’s state of mind to establish the elements required for first degree murder: willful, deliberate and premeditated killing.
Appellant is quite right that the general rule is that evidence of other crimes is inadmissible in connection with the prosecution of another crime. However, the generality is qualified by the provision that the inadmissibility persists only if such evidence is offered to prove a criminal disposition. Evidence Code section 1101, subdivision (b) provides:
“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”
Intent is a subject within that category of exceptional facts. The very nature of the charge places state of mind in issue. This particular issue was raised in the remarkably similar case of People v. Durham (1969)
“There is ample authority for the admission pf evidence of prior criminal activity when such evidence provides considerable circumstantial proof of the actor’s mental state at the time of the charged offense.” (P. 188.)
The admission of other crimes is always a sensitive subject. Such unattractive history hardly enhances a defendant’s position before the trier of fact. However, where the evidence is material and relevant it is not automatically excluded. The circumstance of Powell’s parole status could reasonably tend to prove that he killed Campbell to avoid revocation of his parole and return to prison. Balancing values as to whether or not such evidence should be admitted is left to the discretion of the trial judge. We cannot say that the trial judge did not strike this balance with great care comparing the probative value to the prejudicial effect. In fact, it is apparent to us that such care was exercised and we will not overturn that determination. (People v. Schader (1969) 71 Cal.2d 761 , 772-777 [ 80 Cal.Rptr. 1 , 457 P.2d 841 ]; People v. Foster (1974) 36 Cal.App.3d 594 , 598-599 [ 111 Cal.Rptr. 666 ]; People v. Lynn (1971) 16 Cal.App.3d 259 , 267 [ 94 Cal.Rptr. 16 ].)
Powell’s parole status was not only relevant to the People’s case-in-chief in proving the intent to commit first degree murder, but also to the proffered defense of diminished capacity. As previously observed, the entire circumstance of the killing is germane in determining appellant’s state of mind. (People v. Anderson (1968) 70 Cal.2d 15 , 26-27 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ].) Any circumstance that would tend to explain Powell’s conduct during this fatal episode may be considered in determining whether or not his criminal conduct is the result of a specific intent or a diminished capacity. Therefore, appellant’s position as a parole violator with captured law enforcement officers on his hands is a relational circumstance that the jury could properly consider and weigh.[23]
23 The jury was instructed that the evidence of appellant’s prior criminal record was to be considered for the limited purpose of showing motive and as the basis for the testimony of the psychiatrist called by Powell: “Evidence was offered in this case for the purpose of showing that the defendant, Gregory Ulas Powell, was on parole on March 9 and 10, 1963, and that Jimmie Lee Smith was also on parole. Sugh [sic] evidence was received for a limited purpose only and is to be considered by you only for the limited purpose hereinafter stated and for no other purpose. “The relevancy, if any, of such evidence depends on whether or not in your judgment it tends to show that they had a motive for the commission of the offense charged against the defendant in this action. “You are not permitted to consider such evidence for any other purpose and as to *156 that purpose you must weigh such evidence in the same manner as all other evidence in the case. You are specifically instructed that since such evidence was received for the foregoing limited purpose only, you are not to consider such evidence as proving or tending to prove other distinct offenses, continued criminality or a criminal disposition. As stated, you are to consider such evidence solely as it may bear upon the above stated issue of motive.” “You are instructed further that defendant’s Exhibit POWJ consisting of certain records of the United States Department of Justice, Bureau of Prisons, transmitted by the Director by letter dated July 18, 1963, and defense’s Exhibit POWN, a cumulative case summary State of California, Department of Corrections pertaining to the defendant are also received for the limited purpose of showing a part of the information considered by Dr. Parlour. “Exhibits POWJ and POWN are to be considered by you as well for that limited purpose only.”
Search and Seizure
Powell’s first contact with law enforcement authorities following the shooting of Campbell and the escape of Hettinger occurred during the early morning hours of the following day, March 10, 1963. At this time he was operating a 1957 Plymouth Belvedere automobile colored white over red. The automobile was owned by William Riddick. Around midnight after the murder, Mr. Riddick discovered that his automobile was missing and reported that fact to the Kern County Sheriff’s office. The sheriff dispatched an officer to the Riddick residence and a report was given which included a description of the automobile and its license plate number, California EOB 940.
During this time period a California Highway Patrol black and white vehicle was operated by Traffic Officer Billy J. Odom, accompanied by a fellow officer, Mervyn Crist. Prior to learning of the theft of the Plymouth automobile or its association with the homicide, Odom was aware of an all-points bulletin relating to a homicide of a police officer. Thereafter, at 12:40 a.m., Odom and Crist received a radio broadcast reporting the theft of the 1957 Plymouth Belvedere and describing its distinctive identifying marks. Shortly after 1 a.m. they received another radio broadcast reporting that a Los Angeles police officer had been involved in a homicide and that a white-over-red 1957 Plymouth Belvedere automobile had been stolen and that it was believed to be occupied by the persons suspected of committing the homicide. The report advised the officers of the description of the automobile as to its color and license plate number. Upon receiving this last item of information these officers left their assigned beat and drove to a location on Freeway 99 to try and apprehend the suspects of the stolen vehicle. While on Freeway 99
“A. The left shoulder of the driver dipped down two to four inches, three or four inches; I don’t know exactly.
“Q. When you say ‘dipped down,’ what do you mean?
“A. His left shoulder sagged down to the left (indicating).”
Both vehicles pulled to the right and came to a stop, with the police vehicle parked to the rear of the Plymouth. The officers alighted. Crist approached from the passenger side and Odom proceeded toward Powell who remained seated behind the steering wheel of the Plymouth. Powell was asked to produce his driver’s license, and did so. Odom next asked for a registration for the automobile. Powell removed a yellow cashier’s temporary receipt from the sun visor on the driver’s side and handed it to Odom. On examination the officer observed that the name of appellant and the license plate number attached to the Plymouth checked out but that the make of the car indicated was “Ford.” This discrepancy was brought to Powell’s attention and he attempted to explain this away by stating he had two cars registered on the same day and “apparently I put the wrong registration on the wrong vehicle.” At this point Powell was asked to step from the Plymouth to the rear of the patrol car. Odom escorted him to a place where he could be observed by Crist. Odom then reached under the front seat of the Plymouth automobile on the driver’s side. He there found and recovered a .32 caliber Echeveria automatic pistol. Powell was then placed under arrest for carrying a concealed weapon. He was then searched and was found to be carrying another clip of ammunition, .32 caliber, and a box of .38 caliber bullets. Additional items were withdrawn from the vehicle, including a five-cell flashlight which Odom had observed when he initially approached Powell and first looked into the vehicle. This flashlight had tape wrapped around
Powell contends that the admission of the .32 caliber Echeveria automatic pistol taken from the Plymouth automobile and the other articles removed from his person constitute inadmissible evidence because they are the fruit of an unlawful search and seizure. To support this theory Powell cites and relies on the case of People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807 [ 91 Cal.Rptr. 729 , 478 P.2d 449 , 45 A.L.R.3d 559 ], and its progeny: Gallik v. Superior Court (1971) 5 Cal.3d 855 [ 97 Cal.Rptr. 693 , 489 P.2d 573 ]; People v. Superior Court (Simon) (1972) 7 Cal.3d 186 [ 101 Cal.Rptr. 837 , 496 P.2d 1205 ]; People v. McReynolds (1973) 8 Cal.3d 655 [ 105 Cal.Rptr. 691 , 504 P.2d 915 ]. These case are not applicable because they involve searches and seizures conducted following ordinary traffic violations.
Appellant was not stopped or arrested because of any traffic violation. He was stopped on the basis of reasonable cause to investigate a murder. (People v. Mickelson (1963) 59 Cal.2d 448 , 452 [ 30 Cal.Rptr. 18 , 380 P.2d 658 ].) The relevant criterion is succinctly stated as follows:
“Circumstances short of probable cause to make an arrest justify police officers in temporarily detaining a person for questioning. (People v. Mickelson, 59 Cal.2d 448 , 450-451 [ 30 Cal.Rptr. 18 , 380 P.2d 658 ].) The test is whether the circumstances known to the officer are such as to indicate to a reasonable person in a like position that such a course of conduct is necessary to the proper discharge of the officer’s duties.” (People v. Sutton (1973) 35 Cal.App.3d 264 , 269 [ 110 Cal.Rptr. 635 ].)
The circumstances that resulted in Powell’s being stopped justified the stop and the preliminary interrogation. (Chambers v. Maroney (1970) 399 U.S. 42 , 49 [ 26 L.Ed.2d 419 , 427, 90 S.Ct. 1975 ]; Carroll v. United States (1924) 267 U.S. 132 , 158-159 [ 69 L.Ed. 543 , 553-554, 45 S.Ct. 280 , 39 A.L.R. 790 ]; People v. Schader (1965) 62 Cal.2d 716 , 722 [ 44 Cal.Rptr. 193 , 401 P.2d 665 ]; People v. Manis (1969) 268 Cal.App.2d 653 , 664-665 [ 74 Cal.Rptr. 423 ].)
The initial search of the vehicle that occurred prior to the arrest was justified on several grounds. In the first place, the Kiefer case did not abrogate the “furtive conduct” doctrine.[24] Suspicious gestures coupled with other facts constitute probable cause for search. The Kiefer court enumerated various circumstances which may contribute to the finding of
24 For a thorough discussion of subject and compendium of cases: Annot. (1972) 45 A.L.R.3d 581 .
“A furtive gesture coupled with prior reliable information may constitute probable cause. (People v. Jiminez (1956) supra, 143 Cal.App.2d 671 , 673 [ 300 P.2d 68 ].)” (3 Cal.3d at p. 819.)
The record is uncontradicted as to the fact that the officers had information that a vehicle resembling the one occupied by Powell had been stolen within several hours and was believed to be the escape vehicle connected with a homicide.
“A second circumstance noted in virtually each of the cited cases (with the exception of Williams and Gil) is that the confrontation took place in the nighttime.” (3 Cal.3d at p. 825.)
Powell was stopped sometime between 1 a.m. and 2 a.m. The event in question occurred during the hours of darkness.
Considering every circumstance of the stop and search, we conclude that reasonable cause existed under the facts and circumstances of his case to support Odom’s interpretation of Powell’s body language: the furtive gesture implied that the occupant was in possession of contraband which he was endeavoring to hide. Our conclusion is further supported by the more pliant disposition permitting a search with a nonarrest detention if the intrusion is into an operable motor vehicle and where the suspected contraband consists of weapons. (People v. Flores (1972) 23 Cal.App.3d 23 , 28 [ 99 Cal.Rptr. 858 ]; People v. Baird (1971) 18 Cal.App.3d 450 , 454 [ 95 Cal.Rptr. 700 ]; People v. Wigginton (1967) 254 Cal.App.2d 321 , 326 [ 62 Cal.Rptr. 104 ].)
We reject the contention that the initial search and seizure resulting in the retrieval of the .32 caliber Echeveria automatic pistol was unlawful.
In addition to the “furtive conduct” the search of the Plymouth automobile can be fully justified under another and quite legitimate doctrine: “pressing emergency.” In the present case the legitimacy of the search must be analyzed with reference to all of the above enumerated circumstances not the least of which is the fact that the officers were informed of a recently committed and grave offense. In People v. Terry (1969) 70 Cal.2d 410 [ 77 Cal.Rptr. 460 , 454 P.2d 36 ], the court found the search
Powell
Diminished Capacity
Powell claims that his diminished capacity was established as a matter of law.
Powell introduced evidence pertaining to his mental state in support of his defense of diminished capacity. It was substantially greater than the evidence offered by Smith on this issue. The trial court correctly instructed on this subject with respect to Powell’s ability to form the requisite state of mind for the commission of first degree murder and to form the specific intent in support of the commission of the crime of robbery on which the felony-murder theory of the prosecution hinged.
The evidence is summarized as follows: Between the ages of six and ten Powell suffered a severe head injury rendering him unconscious for several hours; in 1963 he was subjected to a craniotomy revealing that his brain
25 “ ‘The law recognizes that fresh pursuit of a fleeing suspect who has committed a grave offense and remains dangerous to life and limb may constitute “exceptional circumstances” sufficient to justify a search without a warrant.’ (People v. Smith, 63 Cal.2d 779 , 797 [ 48 Cal.Rptr. 382 , 409 P.2d 222 ] [cert. den., 388 U.S. 913 [ 18 L.Ed.2d 1353 , 87 S.Ct. 2119 ]; rehg. den., 389 U.S. 893 [ 19 L.Ed.2d 211 , 88 S.Ct. 13 ]].) A search of the car, abandoned by an individual suspected of killing a police officer within the last 20 minutes and presumably armed and in flight, would help ascertain whether its former occupant was armed and where he might be located. The pressing urgency of such determinations amply justified the search. Since the search of the car was legal, the fruits of that search were properly admitted.” (70 Cal.2d at p. 424.)
26 In cases beginning with Carroll v. United States (1924) 267 U.S. 132 , 153 [ 69 L.Ed. 543 , 551, 45 S.Ct. 280 , 39 A.L.R. 790 ], the Supreme Court approved the thorough search of an automobile where the officer had probable cause to believe it contained contraband. The Carroll case retains vitality as demonstrated in Chambers v. Maroney (1970) 399 U.S. 42 [ 26 L.Ed.2d 419 , 90 S.Ct. 1975 ], For an excellent discussion of this subject see Murray & Aitken, Constitutional Limitations on Automobile Searches, 3 Loyola L.A. L.Rev. 95.
In fact, in cross-examination, Powell’s psychiatrist conceded that Powell was capable of committing first degree murder. The record does not compel the conclusion that Powell’s capacity was in fact diminished.
None of Powell’s evidence on the issue of diminished capacity required the trier of fact to ignore the rather methodical conduct of appellant which immediately followed the abduction of the victims. The trier of fact was entitled to consider the evidence showing that Powell quickly formulated a plan for escape out of the County of Los Angeles and contemplated the effect of leaving the police vehicle parked in its conspicuous manner. The jury had a right to consider the deliberate pattern of first threatening the victims and then quieting them, the apparent design of retaining control and the final pronouncement of the invidious but revealing interrogatory by Powell just prior to the execution of Campbell: “We told you we were going to let you go, but have you ever heard of the Little Lindbergh Law?”
The fact that the only expert opinion was offered by appellant is not conclusive. Expert testimony, even if uncontradicted, is not binding on the court. (Johnathan v. Shea (1971) 19 Cal.App.3d 328 , 334 [ 96 Cal.Rptr. 673 ]; People v. Gentry (1968) 257 Cal.App.2d 607 , 611 [ 65 Cal.Rptr. 235 ].) Quite clearly, the evidence justified the instruction but it was not so compelling as to mandate the conclusion of this issue in favor of appellant. The jury was entitled to consider and weigh all of the evidence including the circumstances occurring prior to, at and following the killing and the important questions of the manner and means of execution. (People v. Anderson (1968) 70 Cal.2d 15 , 26-27 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ]; People v. Smith (1973) 33 Cal.App.3d 51 , 62-64 [ 108 Cal.Rptr. 698 ].) The proof was sufficient to support the jury’s conclusion on this issue. (People v. Mulqueen (1970) 9 Cal.App.3d 532 , 544-545 [ 88 Cal.Rptr. 235 ].)
Diminished Capacity
The failure of the trial court to instruct the jury sua sponte on the defense of “diminished capacity” as to Smith was not error. He has not directed our attention to anything in the record to the effect that he was incapable of forming any of the specific mental states that are essential elements of murder and robbery. There simply was no evidence that he had a substantially reduced mental capacity caused by mental illness, intoxication or any other cause.
Smith bases his claimed right to the defense of diminished capacity on three points. First, he repeatedly refers us to portions of the transcript indicating that he had no idea or inkling that Powell intended to kill the victims. At best, this is an assertion of innocence that pivots on an alleged state of ignorance. Secondly, he argues that his participation was produced by his fear of Powell. A similar argument was rejected by the California Supreme Court in People v. Terry (1970) 2 Cal.3d 362 , 401 [ 85 Cal.Rptr. 409 , 466 P.2d 961 ].
Third, Smith produced Dr. Thomas J. Meyers, a physician and surgeon specializing in the practice of psychiatry. Dr. Meyers testified that he submitted Smith to a variety of tests, examinations and interviews. When called upon for his conclusions, he stated the following:
“. . . In summarizing I would say that the central theme of the whole narrative of this man is one of nonviolence, going back in early years.”
Dr. Meyers’ characterization of Smith does not support or compel an instruction on diminished capacity.[27] Smith never offered any evidence that
27 Dr. Meyers’ testimony: “Q. Is his personality, in your opinion, subject to a characterization or description? “A: Yes. He would be a sociopathic personality with rather strong schizoid characteristics. “Q: What does a psychopathic personality mean, doctor? “A: A psychopathic personality, or a sociopathic individual is an individual who violates the rules. In other words, there is a matter of degree. The extreme case of a sociopathic they call amoral dementia rather than idealization, one in which the values of the majority of people to which the majority of people would adhere, he will kind of take liberties with and establish his own values which are very often at odds with society and which accounts for the fact that he gets into trouble so often. “Q: What does schizoid mean? “A: A schizoid individual is an individual who lives to an increasing degree within himself. Such people are relatively isolates [szc]. That is,' they are able to find a certain degree of completion within themselves rather than in association or contact with other people. Their values are very often the motivation of their acts, come *163 from within them and condition very much what they do. There are a great many schizoids in our society.”
Smith and Powell
Felony-Murder Rule (Robbery) Application
Appellants claim that the felony-murder rule is inapplicable and object to inclusion of robbery as the concomitant felony. They urge that if robbery was committed it was completed before the killing. That was a question for the jury to determine.
Cases dealing with this special theory of the “time phase” of the formation of the specific intent to rob involve acts of larceny following the killing or the infliction of the fatal injury. (People v. Gonzales (1967) 66 Cal.2d 482 , 486 [ 58 Cal.Rptr. 361 , 426 P.2d 929 ] [Jury was properly instructed that intent to rob subsequent to the infliction of the mortal wound was not sufficient to support a finding of first degree felony-murder rule.]; People v. Jeter (1964) 60 Cal.2d 671 [ 36 Cal.Rptr. 323 , 388 P.2d 355 ]; People v. Carnine (1953) 41 Cal.2d 384 [ 260 P.2d 16 ]; People v. Kerr (1951) 37 Cal.2d 11 [ 229 P.2d 777 ] [Not a jury trial.].) In the present case the property was taken from the victims prior to the killing of Campbell and during the stream of events that constituted the kidnaping. (People v. Lessard (1962) 58 Cal.2d 447 , 453 [ 25 Cal.Rptr. 78 , 375 P.2d 46 ].)
Appellants place substantial emphasis on that part of the evidence that indicates that money was returned to Hettinger and that Powell said the guns would be returned. The record clearly shows that Smith took Hettinger’s gun. When that weapon was taken nothing was said about returning it. Appellants’ counsel argue that the weapons were taken only for the immediate protection of the kidnapers and not to permanently deprive the victims of their property. To reinforce this construction our attention is directed to Hettinger’s testimony concerning Powell’s representation that when the victims were released their guns would be unloaded and thrown into some bushes where they could be found after the appellants made their escape. Powell’s comment was responsive to Hettinger’s request that the guns be returned. Nothing proves conclusively that either appellant removed
In addition to the weapons, the victims’ flashlights were taken. Again appellants urge that this taking was necessary for their protection. However, there was no testimony about either Powell or Smith indicating in any way that these items would be returned. Furthermore, their slight value is beside the point. (People v. Simmons (1946) 28 Cal.2d 699 , 705 [ 172 P.2d 18 ].) Hettinger testified that during the ride towards Bakersfield Powell demanded his currency. Hettinger handed $9.00 to Powell. Later Powell returned it. Surely this money was not taken from Hettinger for the safety of the kidnapers. However, it was taken from Hettinger under circumstances where the interests of his safety compelled his compliance. Why the money was returned is curious. The record does not show that Powell did not intend to keep it when he first took it. In fact, it suggests a quiet confidence that it would be available in any event or even a significant degree of sophistication about the felony-murder rule. After all, Powell ultimately inquired as to what Campbell knew of the “Little Lindbergh Law.” It appears that Powell gave this matter of having kidnaped Campbell and Hettinger a good deal of thought. It is elementary that returning property once stolen or taken under force does not neutralize the criminal character of the original act. (People v. Stephenson (1974) 10 Cal.3d 652 , 661 [ 111 Cal.Rptr. 556 , 517 P.2d 820 ]; People v. Tipton (1950) 96 Cal.App.2d 840 , 841 [ 216 P.2d 570 ]; People v. James (1937) 20 Cal.App.2d 88 , 90 [ 66 P.2d 461 ].) In this particular case it is far more likely that Powell’s assurance that he would return the weapons and his return of the money were motivated by a disposition to insure the passivity of the victims until the appellants had reached a place of safety. As long as appellants were accompanied and saddled with Campbell and Hettinger they had not done so. (People v. Salas (1972) 7 Cal.3d 812 , 820-824 [ 103 Cal.Rptr. 431 , 500 P.2d 7 ].) The instructions with respect to robbery were proper.
Smith
Jury Instruction on Theory of Robbery-Murder
Smith contends that the trial court improperly and incompletely instructed the jury on the theory of the felony-murder rule. (Pen. Code, § 189.) In particular, it is urged that the court failed to instruct the jury that it had to find that the specific intent to commit the robbery must be proved beyond a reasonable doubt. The record reveals that the court instructed the jury that specific intent was an element of the crime of robbery and that the robbery itself must be proved beyond a reasonable
The failure to instruct that the felony-murder rule is inapplicable if the intent to rob occurs after the homicide—a fanciful theory on the facts of this case—was not error. Smith relies on People v. Carnine (1953) 41 Cal.2d 384 [ 260 P.2d 16 ]. That case is fully distinguishable in that the accused submitted and requested the instruction. Nowhere does the court declare that the instruction must be given sua sponte. The facts of Camine and of the present case demonstrate that where the time phase of an element of the offense is placed in issue by the defense it becomes a special issue or theory. The court is not obligated to instruct sua sponte on specific points, but only on relevant law pertaining to substantial evidentiary matter that is sufficient to inform the trier of fact that the defendant is relying thereon to avoid conviction. (People v. Brunt (1972) 24 Cal.App.3d 945 , 956 [ 101 Cal.Rptr. 457 ]; People v. Williams (1971) 17 Cal.App.3d 554 , 566 [ 95 Cal.Rptr. 234 ].)
Powell
Misconduct of Attorney
The prosecutor referred to Hettinger’s private life in his opening statement. In part, he said that Hettinger was married and that his wife
28 The following are the instructions given by the trial court pertaining to the concomitant felony of robbery: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which is committed in the perpetration or attempt to perpetrate robbery, the commission of which crime itself must be proved beyond a reasonable doubt, is murder of the first degree.” “To constitute robbery there must exist in the mind of the perpetrator, at the time of the taking of the property, the specific intent to permanently deprive the owner of his property.”
Smith
Competency of Trial Counsel
On April 1, 1969, Smith made a motion to discharge his then trial attorney, Irving Kanarek. The motion was granted. Pursuant to Penal Code section 987, the court appointed Charles Hollopeter to represent Smith. Smith was present when the appointment was made and was informed that Hollopeter had prior commitments, including a trip out of the country during the month of May. With this information, Smith accepted the appointment of Hollopeter and agreed to a continuance of the trial to July 10, 1969. Thereafter he agreed to further continuances. On September 30, 1969, Hollopeter made a motion to be relieved as counsel, and Smith joined in the motion. The court was informed that Hollopeter’s assessment of the case was different from that of Smith. Smith addressed the court and cited three points of irritation. First, he complained that Hollopeter was not immediately available to him following the appointment. Since counsel’s prior commitments were made known to Smith at the time of the appointment, this complaint rings hollow. Furthermore, there is a total absence of any evidence that Smith was prejudiced because Hollopeter was not at his beck and call. The second irritant was a vague assertion concerning Hollopeter’s failure to file a writ of habeas corpus that had been personally prepared by Smith. The basis for the writ was not indicated. Whether or not extraordinary writs should be applied for is a determination that generally should be left with counsel since he is in control of the case. Again, there is no showing that Smith was prejudiced by this conduct. Third and finally, Smith complained that Hollopeter had failed to follow through with an earlier application to obtain a “hypnosis truth serum test” for Smith. This last complaint appears to have been mistaken because the record shows that Smith was afforded a number of psychological examinations, including a
The denial of the motion was not an abuse of discretion. At this juncture, Smith was represented by his third attorney. The record of the later trial clearly shows that Hollopeter was prepared. To the extent that this ground of appeal is predicated on a claim of error in replacing Kanarek with Hollopeter, we dismiss that contention. Smith invited the discharge of Kanarek and represented that he would accept and cooperate with any other attorney the court might appoint. It is now settled that the appointment of counsel is a choice left to the trial court. (Drumgo v. Superior Court (1973) 8 Cal.3d 930 , 934-935 [ 106 Cal.Rptr. 631 , 506 P.2d 1007 ].)
Smith now argues that he received inadequate and ineffective representation during the course of the trial. He complains that Hollopeter erred in the following ways: 1) on voir dire he informed the jury panel that the defense expected a conviction of murder in the second degree; 2) during the course of trial and after the People had put in evidence that Smith was on parole, he referred to Smith’s parole status; 3) he stipulated to the identity of the “Hettinger” gun; 4) he failed to move for new trial and moved for immediate sentencing without any probation report. We dismiss each of these complaints with the following explanations:
During the voir dire Hollopeter stated that the prosecution was asking for a verdict of murder in the first degree and that the defendant was asking for a verdict of murder in the second degree. Smith’s contention is that this interrogation was tantamount to a plea of guilty. We do not agree. The fact that Smith was previously convicted of first degree murder, coupled with the overwhelming evidence against him, strongly suggested that good trial tactics demanded complete candor. At a minimum, Smith’s own testimony would support a conviction of second degree murder predicated on a homicide occurring in the course of a kidnaping. The candor of counsel manifests sound trial tactics and not reversible error. (People v. Reeves (1966) 64 Cal.2d 766 , 769, 773 [ 51 Cal.Rptr. 691 , 415 P.2d 35 ]; People v. Chasco (1969) 276 Cal.App.2d 271 , 273 [ 80 Cal.Rptr. 667 ]; People v. Gibbs (1961) 188 Cal.App.2d 596 , 601 [ 10 Cal.Rptr. 581 ].) As a matter of fact, the reduction of the penalty on the second trial is a good result that speaks for itself.
The People referred to Smith’s parole status at the time of the homicide and introduced into evidence the “parole agreements.” Smith
Smith’s contention that counsel should not have stipulated to the identity of the .38 Colt six-inch barrel revolver as “Hettinger’s gun” .is without merit. The “Hettinger gun” was independently identified and trial counsel’s stipulation was totally reasonable.
The contention that trial counsel erred by failing to make a motion for a new trial is without merit. We find no basis for such a motion in this record. Smith’s suggestion that a probation report should have been obtained is vapid. Having been convicted of first degree murder, Smith was not a likely candidate for probation. Under all of the circumstances at the time of the conviction and the arraignment for sentence, it appears to us that trial counsel made a wise decision in waiving probation and moving to advance the matter for sentencing.
Smith
Cruel and Unusual Punishment
The contention that Smith was mistreated by the People is without merit. The thrust of this contention is that Smith was abused by his jailers and treated disrespectfully by the prosecuting attorneys to such a degree of degradation as to constitute cruel and unusual punishment. The record does not support that view. The record merely shows a justifiable concern for security. Smith’s ability to defend himself was not impaired.
The judgments of conviction as to each of the appellants are affirmed in all respects except that insofar as the judgment provides for the penalty of death as to Powell, it is modified to provide a punishment of life imprisonment. (People v. Anderson (1972) 6 Cal.3d 628 [ 100 Cal.Rptr. 152 , 493 P.2d 880 ].)
Kaus, P. J., and Hastings, J., concurred.
A petition for a rehearing was denied July 22, 1974, and appellants’ petitions for a hearing by the Supreme Court were denied September 5, 1974. Wright, C. J., did not participate therein.
RULE 25. SELECTION OF JURORS.
Section 1. (Manner of Selecting Prospects; No Discrimination.) Persons qualified to render the public duty of jury service shall not be excused from such service except for the causes specified by Section 201 of the Code of Civil Procedure. The Jury Commissioner shall be fair and impartial in the selection of prospective jurors; using the methods and processes under the supervision and control of the court, best suited for these purposes. No prospective juror shall be rejected because of political affiliation, religious faith, race, color, social or economic status, occupation or sex.
Section 2. (Source of Names; Method.) The names of prospective trial jurors (other than any nominated by individual judges) shall be taken from the last published and available registered voters list of Los Angeles County, and by the use of the “key number method.” An estimate shall be made of the number of jurors needed to make up the list for the period required and the key numbers used by the Jury Commissioner shall be based on such estimate.
Section 3. (Data Sheet and Questionnaire Adopted.) The court adopts, for the use of the Jury Commissioner, a form of data sheet and questionnaire, the original of which bears date of February 1, 1959, and is filed as of such date in the minutes of Department 1.
Section 4. (Determining Qualifications and Excluding Prospective Jurors Not Competent.) The Jury Commissioner shall determine the statutory qualifications of each prospective juror and the existence of any infirmity which would impair due performance of jury duty. He shall exclude from service all those he shall find are not competent to serve by law.
Section 5. (Excusing Qualified Persons.) The Jury Commissioner is hereby empowered to grant excuses from jury service to such prospective jurors who in the opinion of the Jury Commissioner qualify for excuse under Section 201 of the Code of Civil Procedure. Before granting or refusing any excuse from jury service, the Jury Commissioner shall fairly weigh and consider all pertinent data, documents, and information submitted by or on behalf of the prospective juror whose excuse or excuses are being considered, and shall, whenever he deems it necessary or desirable, personally interview such prospective juror.
Section 6. (Jury Panels; Use by Municipal Court.) Any municipal court in this county may, by rule adopted by said court, use the same jury panel that is summoned for use in this court. In making up the jury list as provided for in Section 2 hereof, the Jury Commissioner shall consider the number of jurors who may be needed not only by this court but also all municipal courts electing to use the same jury panel as this court. Individual jurors shall be assigned for service in a particular division of a municipal court requesting a trial panel in the same manner in which they are assigned to the various departments of this court. [Added 11-8-67]
Section 7. (Jurors’ Meal Expense. Limitations.) Jurors on criminal cases who are placed in the custody of the bailiff by the court while deliberating shall be allowed the actual cost of meals, not to exceed a maximum for each meal as shall from time to time be fixed by the Committee on Personnel and Budget. [Renumbered and revised 11-8-67]
Exhibit 1
Footnotes
- * Assigned by the Chairman of the Judicial Council.
Cases cited
- People v. Powell 67 Cal.2d 32 at 62-63, at 63, at 59-60 p. 118, p. 119, p. 122, p. 145, p. 153
- People v. Hallner 43 Cal.2d 715 at 720-721 p. 119
- Steelduct Co. v. Henger-Seltzer Co. 26 Cal.2d 634 at 642 p. 119
- People v. Williams 36 Cal.App.3d 262 at 268-269 p. 119
- King v. Kaplan 94 Cal.App.2d 697 at 700 p. 119
- People v. Durbin 64 Cal.2d 474 at 477 p. 120
- People v. Harvey 156 Cal.App.2d 516 at 518-519 p. 120
- People v. Jones 9 Cal.3d 546 at 554 p. 120
- People v. Butler 65 Cal.2d 569 at 573 p. 121
- People v. LaMarr 20 Cal.2d 705 at 711 p. 124
- People v. Sirhan 7 Cal.3d 710 at 749-750, at 753-754, at 728 p. 126, p. 142, p. 163
- People v. Murphy 35 Cal.App.3d 905 at 918-919 p. 126
- People v. McDowell 27 Cal.App.3d 864 at 869-870 p. 126
- Ganz v. Justice Court 273 Cal.App.2d 612 at 623 p. 127
- Castro v. State 2 Cal.3d 223 p. 127
- Whitus v. Georgia 385 U.S. 545 p. 132
- Adams v. Superior Court 27 Cal.App.3d 719 at 728 p. 133
- People v. Jones 25 Cal.App.3d 776 at 782, at 781 p. 133, p. 140
- People v. Collins 68 Cal.2d 319 at 327-328 p. 133
- People v. Gibbs 12 Cal.App.3d 526 at 538-539 p. 134
- People v. Milan 9 Cal.3d 185 at 195-196 p. 134
- People v. Gentry 257 Cal.App.2d 607 at 612, at 611 p. 142, p. 161
- People v. Demes 220 Cal.App.2d 423 at 434 p. 143
- United States v. Tateo 377 U.S. 463 at 466 p. 143
- People v. Stanworth 71 Cal.2d 820 at 833 p. 143
- Gori v. United States 367 U.S. 364 at 366-369 p. 143
- People v. Quicke 71 Cal.2d 502 p. 143
- People v. Ramirez 27 Cal.App.3d 660 at 670 p. 144
- Witherspoon v. Illinois 391 U.S. 510 p. 145
- People v. Rhinehart 9 Cal.3d 139 at 155 p. 145
- Klopfer v. North Carolina 386 U.S. 213 p. 145
- People v. Griffin 15 Cal.App.3d 442 at 449 p. 145
- Barker v. Wingo 407 U.S. 514 p. 145
- Jones v. Superior Court 3 Cal.3d 734 p. 146
- Sykes v. Superior Court 9 Cal.3d 83 p. 147
- Smith v. Superior Court 68 Cal.2d 547 p. 149
- People v. Sharp 7 Cal.3d 448 p. 151
- Drumgo v. Superior Court 8 Cal.3d 930 at 934-935 p. 151, p. 167
- People v. Floyd 1 Cal.3d 694 at 707 p. 152
- People v. Smyers 261 Cal.App.2d 690 at 700 p. 152
- People v. Perry 195 Cal. 623 at 630-633 p. 152
- People v. Clark 62 Cal.2d 870 p. 152
- People v. Aranda 63 Cal.2d 518 p. 152
- People v. Durham 70 Cal.2d 171 p. 155
- People v. Schader 71 Cal.2d 761 at 772-777 p. 155
- People v. Foster 36 Cal.App.3d 594 at 598-599 p. 155
- People v. Lynn 16 Cal.App.3d 259 at 267 p. 155
- People v. Anderson 70 Cal.2d 15 at 26-27 p. 155, p. 161
- People v. Superior Court 3 Cal.3d 807 p. 158
- Gallik v. Superior Court 5 Cal.3d 855 p. 158
- People v. Superior Court 7 Cal.3d 186 p. 158
- People v. McReynolds 8 Cal.3d 655 p. 158
- People v. Mickelson 59 Cal.2d 448 at 452, at 450-451 p. 158
- People v. Sutton 35 Cal.App.3d 264 at 269 p. 158
- Chambers v. Maroney 399 U.S. 42 at 49 p. 158
- Carroll v. United States 267 U.S. 132 at 158-159 p. 158
- People v. Schader 62 Cal.2d 716 at 722 p. 158
- People v. Manis 268 Cal.App.2d 653 at 664-665 p. 158
- People v. Jiminez 143 Cal.App.2d 671 at 673 p. 159
- People v. Flores 23 Cal.App.3d 23 at 28 p. 159
- People v. Baird 18 Cal.App.3d 450 at 454 p. 159
- People v. Wigginton 254 Cal.App.2d 321 at 326 p. 159
- People v. Terry 70 Cal.2d 410 p. 159
- Archbishop Johnathan v. Shea 19 Cal.App.3d 328 at 334 p. 161
- People v. Smith 33 Cal.App.3d 51 at 62-64 p. 161
- People v. Mulqueen 9 Cal.App.3d 532 at 544-545 p. 161
- People v. Terry 2 Cal.3d 362 at 401 p. 162
- People v. Gonzales 66 Cal.2d 482 at 486 p. 163
- People v. Jeter 60 Cal.2d 671 p. 163
- People v. Carnine 41 Cal.2d 384 p. 163, p. 165
- People v. Kerr 37 Cal.2d 11 p. 163
- People v. Lessard 58 Cal.2d 447 at 453 p. 163
- People v. Simmons 28 Cal.2d 699 at 705 p. 164
- People v. Stephenson 10 Cal.3d 652 at 661 p. 164
- People v. Tipton 96 Cal.App.2d 840 at 841 p. 164
- People v. James 20 Cal.App.2d 88 at 90 p. 164
- People v. Salas 7 Cal.3d 812 at 820-824 p. 164
- People v. Sears 62 Cal.2d 737 p. 165
- People v. Brunt 24 Cal.App.3d 945 at 956 p. 165
- People v. Williams 17 Cal.App.3d 554 at 566 p. 165
- People v. Reeves 64 Cal.2d 766 at 769, 773 p. 167
- People v. Chasco 276 Cal.App.2d 271 at 273 p. 167
- People v. Gibbs 188 Cal.App.2d 596 at 601 p. 167
- People v. Anderson 6 Cal.3d 628 p. 169