Anderson, In re

Decision Date18 November 1968
Docket Number11573,Cr. 11572
Citation69 Cal.2d 613,73 Cal.Rptr. 21,447 P.2d 117
CourtCalifornia Supreme Court
Parties, 447 P.2d 117 In re Robert Page ANDERSON on Habeas Corpus. In re Frederick SATERFIELD on Habeas Corpus.

Marshall W. Krause and Richard Bancroft, Garfield Stewart, San Francisco, Jack Greenberg, Leroy D. Clark, Charles S. Ralston, New York City, Nathaniel Colley, Sacramento, Anthony G. Amsterdam, Philadelphia, Pa., Jerome B. Falk, Jr., Gary D. Berger, Roy Eisenhardt, Harry J. Kreamer and Paul N. Halvonik, San Francisco, Michael Meltsner, Melvyn Zarr and Jack Himmelstein, New York City, for petitioners.

Kenneth M. Wells, Sacramento, Gerald H. Gottlieb, Earl Klein, Beverly Hills, Eric A. Rose, Long Beach, Charles E. Voltz, San Francisco, Kenneth W. Graham, Jr., Los Angeles, Carl B. Shapiro, Fairfax, Hubert C. Cavanagh, Frank G. Prantil, San Diego, Herbert E. Selwyn, A. L. Wirin, Fred Okrand, Los Angeles, Francis Heisler, Carmel, Richard A. Iban ez, James Weinberg, Morris Lavine, Robert L. Fitzpatrick, Los Angeles, Michael E. Smith, Berkeley, and Herman F. Selvin, Beverly Hills, amici curiae on behalf of petitioners.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Edward P. O'Brien, Robert R. Granucci and George R. Nock, Deputy Attys. Gen., for respondent.

BURKE, Justice.

The issue here presented is whether the death penlaty and the procedures followed in imposing it are constitutional, and not whether it should be retained or abolished in California. Retention or abolition raises a question of legislative policy which under our system of division of powers falls within the competence of the Legislature or the electorate.

A jury found Frederick Saterfield guilty on two counts of first degree murder and fixed the penalty on each count at death; the judgment was affirmed (People v. Saterfield, 65 Cal.2d 752, 56 Cal.Rptr. 338, 423 P.2d 266, cert. den. 389 U.S. 942 and 964, 88 S.Ct. 352, 19 L.Ed.2d 378). A jury also found Robert Page Anderson guilty of first degree murder, attempted murder of three other men, and first degree robbery, and fixed the penalty at death for the murder; the judgment was affirmed (People v. Anderson, 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366).

Saterfield and Anderson now seek habeas corpus on the grounds that (1) it was improper to excuse for cause veniremen conscientiously opposed to the death penalty; (2) Penal Code, sections 190 and 190.1 are unconstitutional because they contain no standards to assist the trier of fact in determining whether to impose death or life imprisonment; (3) the death penalty, per se and as applied, constitutes cruel and unusual punishment; and (4) petitioners have been denied their right to counsel in post-state-appeal proceedings. We issued orders to show cause and pending final determination of the instant proceedings stayed all judgments of death in California. Counsel in all pending automatic appeals and other attorneys were afforded an opportunity to file amicus curiae briefs, in which additional arguments have been presented challenging the constitutionality of the death penalty as applied in California.

We hold that the death penalty is constitutional and does not constitute cruel or unusual punishment, that Penal Code, sections 190 and 190.1 are valid, and that in keeping with a newly declared policy of this court petitioners, and all other indigent defendants in capital cases, in the interests of justice, will be afforded the services of counsel in the proceedings hereafter specified between the termination of their state appeals and their execution. We have further concluded that under the compulsion of the June 3, 1968, decision of the United States Supreme Court in Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, the death penalties in the two cases now before us must be set aside because certain prospective jurors were improperly excused for cause. It is necessary, therefore, that petitioners be remanded to the trial courts for new trials limited to the issue of penalty.

Excusing Veniremen Opposed To Death Penalty

Petitioners argue that excusing for cause veniremen conscientiously opposed to the death penalty deprived them of a jury which fairly represented a cross section of the community and tended to assure the state a jury whose members were favorable to the prosecution at each phase of the trial. At Saterfield's trial two prospective jurors and two prospective alternate jurors were excused for cause on the ground of their opposition to the death penalty. Likewise at Anderson's trial seven prospective jurors and one prospective alternate juror were excused for cause on that same ground.

At each trial one or more of the prospective jurors excused on that ground did not make it 'unmistakably clear (1) that (he) would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial * * * or (2) that (his) attitude toward the death penalty would prevent (him) from making an impartial decision as to the defendant's guilt,' as mandated by the Witherspoon decision. (391 U.S. 510, 522--523, fn. 21, 88 S.Ct. 1770, 1771, 20 L.Ed.2d 776.) For example, at Saterfield's trial one prospective juror stated, 'I am opposed to the death penalty,' and was thereupon excused for cause; at Anderson's trial one prospective juror in response to the question 'Do you know of any reason you couldn't be a fair and impartial juror in this case?' replied, 'Yes, sir, I do. I don't believe in capital punishment' and was immediately excused for cause. In neither instance had the court made it clear to that particular prospective juror that opposition to the death penalty or conscientious scruples against that penalty would be insufficient by itself to disqualify such a juror from serving. This is not surprising, because the trials preceded the decision of the United States Supreme Court in Witherspoon v. State of Illinois, supra, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, which sets forth new rules that the states are not only compelled to follow but must apply retroactively (see fn. 22, at p. 523, 88 S.Ct. 1770 at p. 1777).

Witherspoon held 'that a sentence of death can not be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' Witherspoon further stated that 'No defendant can constitutionally be put to death at the hands of a tribunal so selected' but that 'nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would Automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's Guilt.'

Witherspoon, therefore, requires us to set aside the death penalties imposed on petitioners and to have the issue of penalty retried. There is no merit to the Attorney General's contention that, since, assertedly, the California law at the time of petitioners' trials was not materially different from the rules in Witherspoon, defense counsels' failure to object to the exclusion of the prospective jurors in question bars petitioners from now claiming error. At the time of petitioners' trials, under decisions interpreting Penal Code, section 1074, subdivision (8), it was proper to excuse for cause prospective jurors who 'did not believe in capital punishment' or who were 'conscientiously opposed to capital punishment' as well as those 'whose consciences would preclude them from imposing (the death penalty).' (E.g. People v. Shipp, 59 Cal.2d 845, 853, 31 Cal.Rptr. 457, 382 P.2d 577, cert. den. 377 U.S. 999, 84 S.Ct. 1927, 12 L.Ed.2d 1049; People v. Love, 56 Cal.2d 720, 726, 16 Cal.Rptr. 777, 779, 17 Cal.Rptr. 481, 366 P.2d 33, 35, 809; People v. Duncan, 53 Cal.2d 803, 816, 3 Cal.Rptr. 351, 358, 350 P.2d 103, 111, pet. for cert. granted, 363 U.S. 840, 80 S.Ct. 1639, 4 L.Ed.2d 1725; writ dismissed 366 U.S. 417, 81 S.Ct. 1355, 6 L.Ed.2d 380; People v. Wein, 50 Cal.2d 383, 394, 326 P.2d 457, 463, cert. den. 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99; People v. Riser, 47 Cal.2d 566, 573--576, 305 P.2d 1, app. dism. Riser v. Warden, 358 U.S. 646, 79 S.Ct. 537, 3 L.Ed.2d 568; People v. Hoyt, 20 Cal.2d 306, 316, 125 P.2d 29; People v. Kynette, 15 Cal.2d 731, 744--745, 104 P.2d 794, cert. den. 312 U.S. 703, 61 S.Ct. 806, 85 L.Ed. 1136; see People v. Carter, 56 Cal.2d 549, 573, fn. 10, 15 Cal.Rptr. 645, 364 P.2d 477.) It is obvious that Witherspoon made a material change in the law in this state. Since petitioners were tried before Witherspoon, failure to object to the exclusion of the prospective jurors in question does not bar petitioners from now claiming error. (Cf. People v. Nye, 63 Cal.2d 166, 175, 45 Cal.Rptr. 328, 403 P.2d 736; People v. Love, supra, 56 Cal.2d 720, 731--732, 16 Cal.Rptr. 777, 17 Cal.Rptr. 481, 366 P.2d 333, 809; People v. Kitchens, 46 Cal.2d 260, 262--263, 294 P.2d 17.)

The Attorney General also contends that any error under Witherspoon in excusing for cause prospective jurors opposed to the death penalty is nonprejudicial where, as here, the prosecution had sufficient peremptory challenges to remove all such jurors. The Attorney General asserts that since the chances of a jury's being able to determine the penalty impartially are diminished if the jury contains even one person who is hostile to, or has reservations concerning, the death penalty, it may be assumed that, if the challenges for cause had...

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