People of the State of California, Plaintiff and Respondent v. Conser Lee Shaw, Defendant and Appellant, Cr. 4703

• Decision Date: 09 August 1965
• Docket Number: Cr. 4703
• Citation: 46 Cal.Rptr. 217
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Conser Lee SHAW, Defendant and Appellant.

Page 217

46 Cal.Rptr. 217

PEOPLE of the State of California, Plaintiff and Respondent, v. Conser Lee SHAW, Defendant and Appellant.

Cr. 4703.

District Court of Appeal, First District, Division 1, California.

Aug. 9, 1965

For Opinion on Rehearing see 47 Cal.Rptr. 96.

Gerald Z. Marer, San Francisco, for appellant (under appointment of the District Court of Appeal).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant appeals from the judgment of the trial court sentencing him to state prison for the term prescribed by law for forcible rape in violation of paragraph 3 of section 261 of the Penal Code. The defendant was convicted of this offense and of robbery in the second degree in violation of section 211 of the Penal Code following trial by jury, but the latter conviction was set aside on motion of the district attorney on the grounds that further proceedings on that charge would subject the defendant to double punishment. On his arraignment on an amended information the defendant, in addition to entering a plea of not guilty to each of the foregoing charges, had admitted allegations which charged that he had a prior conviction of robbery in 1957 and a prior conviction of kidnapping in 1959, and that he had served a term of imprisonment for each in the state prison.

Defendant attacks the ruling of the trial court in limiting him to ten peremptory challenges, its rulings on the admission of evidence, the manner in which it instructed the jury, and asserts alleged prejudicial misconduct on the part of the prosecutor.

In view of the conclusion on the issue of the number of peremptory challenges which requires a reversal, it is unnecessary to detail the facts surrounding the sordid occurrence giving rise to this case. Such facts as are material to the questions raised will be hereinafter set forth.

The Alleged Error in Disallowing More Than Ten Peremptory Challenges.

After the defendant had exercised nine peremptory challenges and had examined a juror seated to replace one who had been excused by the court for cause, and after the People had expressed satisfaction with the jury as constituted, the court stated: 'What says the Defendant? This is your last challenge Mr. Larson.' The defendant excused the juror, and thereupon a new juror was sworn and examined by both sides. When the People expressed satisfaction with the jury, the court ordered the clerk to swear the jurors to try the case. The defendant then sought to exercise a further peremptory challenge to a juror who had been seated following the exercise of his ninth challenge. ¹

Defendant claims he was deprived of his rights under section 1070 of the Penal Code which provides: 'If the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to twenty and the state to twenty peremptory challenges. On a trial for any other offense, the defendant is entitled to ten and the state to ten peremptory challenges.' The failure to grant a defendant the prescribed number of peremptory challenges when the record reflects his desire to excuse a juror before whom he was tried is reversible error. (People v. Diaz (1951) 105 Cal.App.2d 690, 695, 234 P.2d 330, hearing in S.Ct. den. Aug. 23, 1951; People v. O'Connor (1927) 81 Cal.App. 506, 519-521, 254 P. 630; People v. O'Neil (1882) 61 Cal. 435, 436; People v. Harris (1882) 61 Cal. 136, 137; cf. People v. Bugg (1947) 79 Cal.App.2d 174, 176, 179 P.2d 346; People v. Aguinaldo (1934) 3 Cal.App.2d 254, 260, 39 P.2d 505; and People v. Carter (1961) 56 Cal.2d 549, 573-574, 15 Cal.Rptr. 645, 364 P.2d 477, and note 3 U.C.L.A.L.Rev. 384-387; and see Swain v. State of Alabama (1965) 380 U.S. 202, 211-212, 85 S.Ct. 824, 13 L.Ed.2d 759, 766-774 for the historical background of the peremptory challenge.)

He first points out that under the charge of forcible rape he was punishable by, and in fact was sentenced to imprisonment in the state prison for a term of not less than three years (Pen.Code § 264), which under the provisions of section 671 of the Penal Code subjected and subjects him to a maximum term of imprisonment in the state prison for life. (People v. Bales (1961) 189 Cal.App.2d 694, 705, 11 Cal.Rptr. 639 (double punishment, rape including incest); see also People v. Harmon (1960) 54 Cal.2d 9, 16-17, 4 Cal.Rptr. 161, 351 P.2d 329 (construction of Pen.Code, § 4500); In re Larsen (1955) 44 Cal.2d 642, 647-648, 283 P.2d 1043 (upholding constitutionality of the indeterminate sentence law); and People v. Collins (1963) 220 Cal.App.2d 563, 580-581, 33 Cal.Rptr. 638 (multiple punishment, burglary including three other offenses incident to the same objective).) He also alleges that at the start of the trial under the same principle he was also subject to punishment for a maximum term of life imprisonment if convicted of robbery (Pen.Code, §§ 213 and 671; People v. Aldridge (1961) 197 Cal.App.2d 555, 560, 17 Cal.Rptr. 304 (double punishment, robbery including assault with a deadly weapon)); and finally that in view of his admission of the two prior felony convictions as alleged, he was subject, if convicted of either of the offenses charged, to imprisonment in the state prison for life as an habitual criminal pursuant to the provisions of section 644 of the Penal Code.

The question presented by the sentences for the principal offenses--not less than three years for rape (Pen.Code, § 264) or not less than five years, or one year, for robbery (Pen.Code, § 213) came before the court in People v. Clough (1881) 59 Cal. 438 under similar provisions of section 1070 as it read prior to its amendment in 1927. The court stated: 'It is claimed on this appeal, that robbery is punishable for life; that the defendant was entitled to twenty peremptory challenges, and that the Court erred in its ruling. The section in question has never received a judicial interpretation, and the point is a new one. We are called upon to decide it without precedent or authority to aid us. 'If the offense charged is punishable with death or with imprisonment in the State Prison for life, the defendant is entitled to twenty peremptory challenges.' Such is the language of the section now under consideration. We have reached the conclusion that it is only in capital cases, or cases in which a life sentence is in terms affixed by the Legislature as the punishment of the crime, that the defendant is entitled to twenty peremptory challenges. Robbery is not such a crime. It is true that the maximum punishment is not designated by the statute, but the minimum is, and that need not be for a longer time than one year.' (59 Cal. pp. 441-442.) This principle, although questioned on occasion, has been uniformly followed in this state. (People v. Riley (1884) 65 Cal. 107, 108, 3 P. 413 (robbery); People v. Fultz (1895) 109 Cal. 258, 259, 41 P. 1040 (rape); People v. Logan (1899) 123 Cal. 414, 416, 56 P. 56 (rape); People v. Sullivan (1901) 132 Cal. 93, 94, 64 P. 90 (burglary); People v. Scott (1914) 24 Cal.App. 440, 442, 141 P. 945 (rape); People v. Purio (1920) 49 Cal.App. 685, 687, 194 P. 74 (robbery).) ²

Defendant seeks to avoid the ruling of the foregoing line of cases because they were decided when the provisions of section 671 of the Penal Code read as follows: 'Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the Court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed.' (As enacted 1872 and until amended Stats.1951, ch. 1674, § 1, p. 3830.) He also points out that those cases arose before the passage of provisions providing for indeterminate sentences to be fixed administratively. (Stats.1917, ch. 527, p. 665; Pen.Code §§ 1168 and 3020-3025; see People v. Gonzales (1918) 36 Cal.App. 782, 173 P. 407.) He relies on the cases first referred to above for the proposition that now a 'not less than sentence' is automatically a life sentence until otherwise ordered by the Adult Authority. In Purio, supra, after reaffirming the principle of Clough, it was stated: 'It may be added that the recent change in the law providing for an indeterminate sentence has not affected the rule in reference to the number of peremptory challenges.' (49 Cal.App. at p. 687, 194 P. 74, 76.) Defendant contends this language is predicated upon the author's misconception of the indeterminate sentence law as reflected by his opinion in Gonzales, supra, where he stated: 'Indeed, where there is a maximum and minimum term prescribed by the law, it was left prior to said act of 1917 to the discretion of the court to impose the punishment within these limits. That was the case in nearly all the penitentiary offenses, but the purpose of the new law was to take from the trial judge the discretion of fixing definitely the term of imprisonment and to vest it in the prison directors within the limits prescribed by the Penal Code.

'We can see no merit in the claim that the law does not prescribe the maximum penalty for the crime of robbery. The maximum penalty 'prescribed by the law' is the extreme penalty that the law authorizes to be imposed; that is, life imprisonment in the present case, as we have seen.

'The two sections of the Penal Code may be read together, and they amount to this: 'Robbery is punishable by imprisonment in the state prison not less than one year and it may be for life.'' (36 Cal.App. at p. 784, 173 P. at p. 407.)

This interpretation is not necessarily inconsistent with the authorities which hold that a prisoner who may receive a maximum punishment of a life sentence may be treated as undergoing such until a sentence is...