Jackson, In re

• Citation: 39 Cal.Rptr. 220,393 P.2d 420,61 Cal.2d 500
• Decision Date: 06 July 1964
• Docket Number: Cr. 7704
• Court: California Supreme Court
• Parties: , 393 P.2d 420 In re Lawrence Akin JACKSON on Habeas Corpus.

Page 220

39 Cal.Rptr. 220

61 Cal.2d 500, 393 P.2d 420

In re Lawrence Akin JACKSON on Habeas Corpus.

Cr. 7704.

Supreme Court of California, In Bank.

July 6, 1964.

Rehearing Denied Aug. 5, 1964.

Allan Brotsky, San Francisco, and Henry M. Elson, Berkeley, for petitioner.

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

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Robert R. Granucci and Henry B. Lasky, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

The single question that we must answer here is whether a writ of habeas corpus properly enables us to review the sentence of death pronounced against petitioner after a penalty trial embracing the errors described in People v. Morse (1964) 60 A.C. 613, 36 Cal.Rptr. 201, 388 P.2d 33, and which resulted in the prejudice found in People v. Hines (1964) 61 A.C. 148, 37 Cal.Rptr. 622, 390 P.2d 398. For the reasons hereinafter stated we have concluded that the writ should be granted to provide petitioner with a new penalty trial.

The jury found petitioner guilty of a rape-murder. The evidence showed that petitioner previously had served two prison sentences, one imposed in 1946 for assault with intent to commit great bodily harm, and one rendered in 1952 for attempted rape. Petitioner, who served almost nine years for the latter offense, participated while in prison in various counselling and psychotherapy programs. Some few days after his release on parole from the latter sentence he committed the murder. We affirmed the conviction and sentence on appeal. (People v. Jackson (1963) (Crim. No. 7147) 59 Cal.2d 375, 29 Cal.Rptr. 505, 379 P.2d 937.)

The record of the penalty trial unquestionably discloses the errors that we described in Morse: the improper admission of evidence, the erroneous argument of counsel, the incorrect instruction of the trial court as to the possible grant of parole by the Adult Authority, and the additional erroneous argument and instruction as to the possible reduction of the death penalty by the trial judge and the Governor.

Specifically, the trial court instructed the jury that it could consider the possibility of parole in the event of life sentence; the prosecutor argued that only a small number of those sentenced to life imprisonment remained in prison for their natural lives. The prosecutor also introduced testimony which disclosed 'the average time' served by those released on parole who were serving life sentences. The deputy district attorney further contended that defendant 'fooled' the Adult Authority 'once by being a model prisoner,' and that there was no reason 'not to believe ten, twelve or fifteen years from now' he would 'be able to fool them again.' He later urged, 'I don't think anyone of you want to share in turning this man loose on the streets in seven years, ten years, fifteen years, or twenty years. This is a responsibility I won't take and I am sure none of you ladies and gentlemen on this jury want to accept that responsibility. * * * (A)ny other verdict except the extreme penalty * * * would place sometime in the future some unknown woman at your hands on a time table of death.'

The prosecutor further argued that the jury's verdict was not 'the final say-so as the judge will instruct you. * * * The next thing in this matter is under the control of Judge Waite * * * he must review it in his mind. * * * (T)he Justices of the Supreme Court, the Governor may commute Mr. Jackson's sentence to life imprisonment.' The court told the jury of the possible reduction of the death penalty by the trial judge and the Governor.

Petitioner's penalty trial, although it contained such errors, was affirmed upon appeal; in Morse, however, we expressly overruled those portions of the opinion dealing with the possibility of parole ¹ and the Governor's power of commutation. ² If, in a case subsequent to Morse such errors were brought to us by appeal, they would obviously compel reversal. (People v. Hines (1964) 61 A.C. 148, 37 Cal.Rptr. 622, 390 P.2d 398.) But petitioner has exhausted his appellate review. He comes to us for a writ of habeas corpus.

Historically the function of the writ has been hugely expanded. Its original limited purpose of releasing a person imprisoned or restrained as a result of a void proceeding or jurisdictional defect in the imprisoning authority (e. g., Ex Parte Long (1896) 114 Cal. 159, 45 P. 1057; Ex Parte Max (1872) 44 Cal. 579) has been extended to review the constitutionality of statutes (In re Bell (1942) 19 Cal.2d 488, 495, 122 P.2d 22) as well as trial procedure (In re Harris (1961) 56 Cal.2d 879, 16 Cal.Rptr. 889, 366 P.2d 305; In re Newbern (1960) 53 Cal.2d 786, 791-792, 3 Cal.Rptr. 364, 350 P.2d 116). Nor have the decisions confined the review to the face of the trial court proceedings; such re-examination has embraced the entire course of the proceedings, including additional evidence taken either directly or under an order of reference. (In re Seeley (1946) 29 Cal.2d 294, 297, 176 P.2d 24; In re Connor (1940) 16 Cal.2d 701, 712, 108 P.2d 10.) The cases do not limit the writ to the procurement of the release of one wrongfully imprisoned but enlarge its scope to the protection of the rights of prisoners while incarcerated. (In re Riddle (1962) 57 Cal.2d 848, 851, 22 Cal.Rptr. 472, 372 P.2d 304; In re Ferguson (1961) 55 Cal.2d 663, 669, 12 Cal.Rptr. 753, 361 P.2d 417.)

The decisions have thus broadened the compass of the writ not by an expansion of the concept of jurisdiction but by a proliferation of its availability in situations in which the trial court in a strict sense could exercise 'jurisdiction.' (See In re McInturff (1951) 37 Cal.2d 876, 880, 236 P.2d 574; In re McVickers (1946) 29 Cal.2d 264, 270, 176 P.2d 40; Granucci, Review of Criminal Convictions by Habeas Corpus in California (1962) 15 Hastings L.J. 189, 198.)

In this manner the courts have used the writ to reach such matters as an adjudication of habitual criminality (In re McVickers, supra, 29 Cal.2d at p. 274, 176 P.2d 40; In re Seeley, supra, 29 Cal.2d at p. 303, 176 P.2d 24; ³ In re Rosencrantz (1931) 211 Cal. 749, 751, 279 P. 15); a prisoner's right to apply for relief from default in perfecting an appeal (In re Martin (1962) 58 Cal.2d 133, 141, 23 Cal.Rptr. 167, 373 P.2d 103; In re Gonsalves (1957) 48 Cal.2d 638, 642, 311 P.2d 483; In re Byrnes (1945) 26 Cal.2d 824, 828, 161 P.2d 376); the erroneous imposition of an excessive sentence (In re Morck (1919) 180 Cal. 384, 181 P. 657); the improper rendition of multiple sentences (Neal v. State of California (1960) 55 Cal.2d 11, 17, 9 Cal.Rptr. 607, 357 P.2d 839); an erroneous conviction under an inapplicable statute (In re Zerbe (1964) 60 A.C. 650, 652, 36 Cal.Rptr. 286, 388 P.2d 182); an incorrect conviction under a complaint not charging a public offense (In re Allen (1962) 59 Cal.2d 5, 6, 27 Cal.Rptr. 168, 377 P.2d 280).

Finally, the decisions have many times stated that the writ may be granted under exceptional circumstances to review a matter that cannot otherwise be reached and to present a question of law that is sufficiently important to justify this extraordinary remedy. In In re Bell, supra, 19 Cal.2d at page 493, 122 P.2d at page 26, we quoted approvingly from Bowen v. Johnston (1939) 306 U.S. 19, 26-27, 59 S.Ct. 442, 83 L.Ed. 455, that 'It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. * * * the rule is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' We further stated, 19 Cal.2d at page 494, 122 P.2d at page 26 that 'There are other situations in which habeas corpus is used, not as a test of jurisdiction, but to review a question of law that cannot otherwise be raised or is so important as to render the ordinary procedure inadequate.'

Likewise, we said in In re Byrnes, supra, 26 Cal.2d at page 827, 161 P.2d 376, 377, that 'It is well settled that a writ of habeas corpus ordinarily may not be employed as a substitute for an appeal * * * yet the scope of inquiry in such proceedings has been broadened rather than narrowed * * * and the writ may be used to present questions of law that cannot otherwise be reviewed or are so important as to justify an extraordinary remedy * * *.' (See In re McVickers, supra, 29 Cal.2d at p. 273, 176 P.2d 40.) In In re Seeley, supra, 29 Cal.2d at page 296, 176 P.2d at page 26, we stated that 'It is the general rule that the writ may not be used to correct error * * *. But in exceptional cases it may be issued even though other remedies might have been available.' The court in In re Silverstein (1942) 52 Cal.App.2d 725, 727, 126 P.2d 962, 964, held that the 'writ may be resorted to in order to afford a review of a question of law that cannot otherwise be raised, or where because of the importance of the issues involved, ordinary procedure would prove inadequate.'

This case presents an exceptional situation. The punishment of death has been decreed for petitioner upon the basis of trial which, within one year of the disposition of his appeal, has been held by this court in a comparable case to contain the vice of prejudicial error. Since petitioner has exhausted his remedy by appeal to this court, his sole hope lies in the writ. Unless we grant the review, the fortuity of time alone will seal the sentence of death, which, if petitioner's trial had occurred later, might never have been uttered. These exceptional circumstances demonstrate and justify the use of the writ in this case.

The application of the writ meets no obstacle here in the form of limiting factors set forth in prior cases. We need not redetermine facts found at the trial. (See In re Zerbe, supra, 60 A.C. at p. 652, 36 Cal.Rptr. 286, 388 P.2d 182; Neal v. State of California, supra, 55 Cal.2d at p. 17, 9 Cal.Rptr....