Hill, In re

• Decision Date: 11 September 1969
• Docket Number: 12146,Cr. 12007,12125
• Court: California Supreme Court
• Parties: , 458 P.2d 449 In re Joshua N. HILL on Habeas Corpus. In re James W. SAUNDERS on Habeas Corpus.

Page 537

80 Cal.Rptr. 537

71 Cal.2d 997, 458 P.2d 449

In re Joshua N. HILL on Habeas Corpus In re James W. SAUNDERS on Habeas Corpus.

Cr. 12007, 12146, 12125.

Supreme Court of California In Bank.

Sept. 11, 1969.

James William Saunders, in pro. per.

Michael E. Ballachey, under appointment by the Supreme Court, Berkeley, Paul N. Halvonik, Gary D. Berger, Jerome B. Falk, Jr., Charles Stephen Ralston, John Bartko, San Francisco, Anthony G. Amsterdam, Philadelphia, Pa., Richard Bancroft, Roy Eisenhardt, San Francisco, Jack Greenberg and Leroy D. Clark, New York City, N.Y., Marshall Krause, Harry J. Kreamer, Garfield Stewart, San Francisco, and Nathaniel Colley, Sacramento, for petitioners.

Thomas C. Lynch, Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for respondent.

SULLIVAN, Justice.

These separate petitions for writs of habeas corpus present common questions as to the lawfulness of petitioners' confinement at the California State Prison at San Quentin. We therefore proceed to treat them together.

Joshua N. Hill and James W. Saunders, petitioners, along with a third codefendant, Ben Madorid, after a joint trial were convicted of murder, assault with intent to commit murder and robbery. The jury found the robbery and murder to be of the first degree and fixed the penalty of petitioners Hill and Saunders at death on the murder count. ¹ We affirmed the judgments against both petitioners on their automatic appeals under Penal Code section 1239, subdivision (b), (People v. Hill (1967) 66 Cal.2d 536, 58 Cal.Rptr. 340, 426 P.2d 908) and they are presently awaiting execution of their death sentences.

In Crim. 12125, petitioner Saunders by an amended petition filed in propria persona seeks a writ of habeas corpus upon the grounds: 1) that his conviction was imposed in violation of the due process clause of the Fourteenth Amendment to the United States Constitution because it was based in part upon an in-court identification by witness to an uncharged similar offense who, prior to such identification, had viewed petitioner at an unfairly conducted police showup; 2) that his conviction was also obtained in violation of the Sixth and Fourteenth Amendments in that the admission of the extrajudicial confessions of his two codefendants which implicated petitioner deprived him of the right to cross-examination guaranteed by the confrontation clause of the Sixth Amendment as made applicable to the states through the Fourteenth Amendment; 3) that the sentence of death cannot lawfully be carried out against him because veniremen were excused for cause from the jury in violation of the standards set forth in Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; and 4) that he was deprived of a jury which fairly represented a cross section of the community because prospective jurors with conscientious scruples against capital punishment were excluded thereby resulting in 'a jury whose members were partial to the prosecution on the issue of guilt or innocence.'

A supplement to the foregoing petition has been filed on behalf of petitioner by an attorney alleging the additional grounds: 1) that petitioner, as an indigent, has been denied equal protection of the laws because of the failure of the State of California to appoint counsel for him while he was awaiting execution of his sentence of death; 2) that persons with conscientious objections to the death penalty were excluded from the jury thereby depriving petitioner of jurors representing a valid cross section of the community on both the issues of guilt and penalty; and 3) that the death penalty as administered in California is unconstitutional because, a) the jury is without standards in making its determination as to penalty and, b) the death penalty constitutes cruel and unusual punishment.

In Crim. 12007, petitioner Hill seeks a writ of habeas corpus on the grounds: 1) that petitioner, as an indigent, has been denied equal protection of the laws by the failure of the State of California to provide counsel after the termination of his automatic appeal; 2) that petitioner was deprived of a jury representing a valid cross section of the community on the issues of guilt and penalty since persons with conscientious objections to the death penalty were excluded from his jury for cause; and 3) that the death penalty in California is unconstitutional for the same reasons alleged in the petition filed on behalf of Saunders. In addition, in Crim. 12146, Hill has filed in propria persona a petition for writ of habeas corpus in which he contends, in language identical to that of petitioner Saunders, that his conviction was imposed in violation of the due process clause of the Fourteenth Amendment because of an unfairly conducted pretrial police show-up.

We issued orders to show cause in favor of petitioner Saunders in Crim. 12125 and in favor of petitioner Hill in Crim. 12007 and Crim. 12146, and we appointed counsel to represent Saunders. ²

Petitioners were convicted of the robbery of the Laurbank Liquor Store in North Hollywood on September 16, 1964, the murder of the clerk of that store, and the assault with intent to commit murder of another person who was in the store. The actual perpetrators of the crimes were Hill and Madorid; Saunders drove the getaway car. All three defendants were arrested in Las Vegas, Nevada, where they had forced Madorid's friend, John Niehoff, to drive them on the day following the murder. While in Las Vegas, Hill and Madorid made full confessions in which each implicated the other defendants. Saunders made a written statement in which he indicated that Hill and Madorid robbed the store, that when he drove them to the scene of the crime he had no knowledge that a robbery was contemplated, and that he did not learn of the crime until after it had been committed. However, on the way to his arraignment in Los Angeles, Saunders admitted to a police officer that he knew a robbery was contemplated when he drove Hill and Madorid to the store and that he had shared in the proceeds of the robbery. We held that petitioners' confessions were properly admitted at their trial against claims that such confessions were involuntary and were obtained in violation of the rules set forth in Escobedo v. Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. Madorid took the stand at trial on the issue of guilt and testified substantially in accord with his extrajudicial confessions. Neither Hill nor Saunders testified although Saunders through his counsel urged the jury to disregard his confession and find that when he drove Hill and Madorid to the Laurbank Liquor Store he had no knowledge that a robbery was contemplated.

There was also introduced at the trial the testimony of Thomas Spero, called as a witness by the People. Spero was a clerk at the Sands Liquor Store in the San Fernando Valley. He testified that on September 13, 1964, three nights prior to the crimes with which petitioners were charged, two men robbed the Sands Liquor Store, hit him over the head and shot him in the leg. He made an in-court identification of petitioners as being the perpetrators of that crime. We held that Spero's testimony was admissible as being relevant to show 'a common plan or scheme (on the part of petitioners) and thereby knewledge on the part of Saunders as to the modus operandi and probable consequences in the case at bench. (Citation.)' (People v. Hill, Supra, 66 Cal.2d at p. 557, 58 Cal.Rptr. at p. 353, 426 P.2d at p. 921.)

Petitioners now contend that Spero's courtroom identification of them was tainted by a pretrial show-up conducted by the police which was so unduly suggestive to Spero that it deprived petitioners of due process of law.

Spero testified that on the evening of September 13 he was working alone at the Sands Liquor Store. About 11 or 11:30 p.m. petitioners entered the store and stood together at the counter. They asked Spero for a six pack of Schweppes Tonic Mix; Spero turned and walked down one side of a long freezer located in the middle of the store. Petitioner Hill went around the other side of the freezer and walked in a direction parallel to Spero to the end of it, passing out of Spero's sight for just seconds; Saunders stayed behind Spero. When the latter reached the end of the freezer and bent over to pick up the beverage he looked up and saw that Hill was holding a gun on him. Hill said: 'We aren't fooling around. This is a holdup.' He ordered Spero to turn around and when Spero complied Hill hit him over the head with the butt of the pistol causing a bleeding wound on the back of his head. Spero testified that the blow dazed him but that he did not lose consciousness. Seconds after being hit on the head he was shot in the left leg and fell to the floor. In compliance with Hill's orders, he crawled to a corner of the store. He sat there and watched Saunders take money out of the cash register. When asked how much time he had had to observe Saunders before being struck on the head, Spero, answered, 'More than enough time to be able to recognize him if I saw him again * * * Perhaps thirty seconds.' While he was sitting on the floor Spero was told several times by Hill to turn around, but he refused to do so. Finally, petitioners left the store after having been there 'under five minutes.' When the police arrived Spero gave them a description of petitioners' hair color, clothing, approximate height and approximate ages. He also described them to the police the next morning.

On cross-examination by defense counsel it was brought out that on October 2, 1964, the day of petitioners' preliminary hearing, Spero was requested by a police officer to come to the courthouse to identify someone. When Spero reached the courthouse the police informed him that they wanted him to see if he could identify the parties who robbed the...