61 Cal.2d 556, 7781, In re Imbler

• Docket Nº: 7781
• Citation: 61 Cal.2d 556, 39 Cal.Rptr. 375, 393 P.2d 687
• Opinion Judge: [11] Traynor
• Party Name: In re Imbler
• Attorney: [7] Gregory S. Stout, under appointment by the Supreme Court, and Jules C. Goldstone for Petitioner. [8] Earl Klein as Amicus Curiae on behalf of Petitioner. [9] Stanley Mosk, Attorney General, Albert W. Harris, Jr., Robert R. Granucci and John F. Kraetzer, Deputy Attorneys General, for Respondent.
• Case Date: July 14, 1964
• Court: Supreme Court of California

Page 556

61 Cal.2d 556

39 Cal.Rptr. 375, 393 P.2d 687

In re Paul Kern IMBLER on Habeas Corpus.

Cr. 7781.

Supreme Court of California

July 14, 1964.

In Bank

Page 557

Gregory S. Stout, San Francisco, under appointment by the Supreme Court, and Jules C. Goldstone, Beverly Hills, for petitioner.

Earl Klein, Beverly Hills, amicus curiae on behalf of petitioner.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Robert R. Granucci and John F. Kraetzer, Deputy Attys. Gen., for respondent.

TRAYNOR, Justice.

A jury convicted petitioner of first degree murder and fixed his penalty at death. We affirmed the judgment (People v. Imbler, 57 Cal.2d 711, 21 Cal.Rptr. 568) and thereafter denied a petition for a writ of habeas corpus challenging the determination of petitioner's guilt. (In re Imbler, 60 Cal.2d 554, 35 Cal.Rptr. 293.) Petitioner now contends that his penalty should be redetermined because the errors condemned in People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, occurred during his penalty trial. This issue is properly raised on habeas corpus. (In re Jackson, 61 Cal.2d 500, 39 Cal.Rptr. 220.)

The only evidence introduced at the penalty trial was the testimony of a former member of the California Adult Authority about the qualifications of the members of the Adult Authority, parole procedures, the factors considered in determining a prisoner's fitness for parole, and the possibility of parole for first degree murderers. The prosecuting attorney attempted to elicit from the witness testimony showing that the policies of the Adult Authority were inconsistent and that there was considerable recidivism among paroled first degree murderers.

In his argument the prosecutor prefaced his remarks about the possibility of parole by stating, 'The alternative punishment to the death penalty is life imprisonment, and as

Page 558

you know by now, after listening to (the former member of the Adult Authority) * * *, life imprisonment in California certainly doesn't mean life imprisonment. It certainly doesn't mean life imprisonment.' He went on to attack the Adult Authority generally: '* * * as you saw, (the statistics purporting to show the median time served by life termers) * * * varied quite a bit, and that variation goes to show, if anything, that there is complete inconsistency in the Adult Authority.' He attacked the ex-member witness in particular: 'He didn't have...