People v. Bickley

• Decision Date: 04 June 1962
• Docket Number: Cr. 6982
• Citation: 57 Cal.2d 788,22 Cal.Rptr. 340,372 P.2d 100
• Court: California Supreme Court
• Parties: , 372 P.2d 100 The PEOPLE of the State of California, Plaintiff and Respondent, v. David Charles BICKLEY, Defendant and Appellant.

Page 340

22 Cal.Rptr. 340

57 Cal.2d 788, 372 P.2d 100

The PEOPLE of the State of California, Plaintiff and Respondent, v. David Charles BICKLEY, Defendant and Appellant.

Cr. 6982.

Supreme Court of California, In Bank.

June 4, 1962.

E. Fred Lightner, Long Beach, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James and Gilbert F. Nelson, Asst. Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

David Charles Bickley and John Larue Young were jointly charged with murder, and, with other defendants, were also charged with the commission of various robberies. Bickley, the only defendant involved on this appeal, pleaded not guilty and not guilty by reason of insanity to all charges. Pursuant to the provisions of section 1027 of the Penal Code, two alienists were appointed to examine him. They reported Bickley to be sane. Bickley then withdrew his insanity plea, and pleaded guilty to the five robbery counts. On the trial of the murder count, on the issue of guilty, the jury found both Young and Bickley guilty of murder in the first degree. On the penalty phase of the trial the same jury fixed the penalty for Young as life imprisonment, and for Bickley, fixed the penalty as death. This automatic appeal of Bickley is before us under the provisions of section 1239, subdivision (b), of the Penal Code.

No challenge is or can be made of the determination of guilt. Neither defendant offered any evidence on this issue, and both fully confessed upon their arrest. The record discloses no errors of any serious nature on the trial of this issue.

The facts produced by the prosecution on the guilt phase of the trial, while conflicting in a few minor immaterial details, demonstrate that during the perpetration of a robbery Bickley shot and killed one Elvin Boyd Feightner. Bickley and Young, about 10:30 p. m. on January 30, 1961, entered the Gold Room bar in Long Beach. Bickley was armed with a sawed-off shotgun which he had stolen. Young was armed with a knife. There were about 15 patrons in the bar. These were ordered to line up at the back of the bar. All did so but Feightner, who, it was stipulated, was then intoxicated. Feightner grabbed a beer bottle from the bar and threw it at Bickley. The latter then shot over Feightner's head, and warned him and the other patrons that he 'meant business.' He then jumped over the bar and tried to open the cash register which was locked. In the meantime, Feightner grabbed another beer bottle, broke it, and with this weapon in his hands, started slowly after Young. The latter backed up and yelled to Bickley for help. Bickley, with the shotgun in his hands, vaulted back over the bar. Feightner then started after Bickley. The latter backing up slowly, warned Feightner to stop, and when Feightner continued towards him, Bickley asked the bartender to tell Feightner to stop because he, Bickley, did not want to hurt anyone. The bartender warned Feightner, but the latter continued to stalk Bickley, and when he got close to him, Feightner swung the beer bottle at Bickley and grabbed at the gun barrel. Bickley then shot and killed Feightner. This was, of course, murder in the first degree. ¹

After the murder, Young and Bickley ran out of the bar and escaped in an 'MG' automobile they had stolen several days before. The next day, Bickley and one Minnix (Young refused to participate) armed with the shotgun, held up a sporting goods store in Long Beach and stole six hand guns, two holsters, and several boxes of ammunition. After this robbery, the shotgun was thrown away at a spot where it was later found, and the 'MG' car was abandoned, after Bickley had wiped it clean of fingerprints. Then Young and Bickley, accompanied by a young woman, left California in a stolen Chevrolet and drove to Flagstaff, Arizona, where they were arrested several days after the murder. Bickley was then armed with one of the stolen hand guns, and another one was found in the car. Both Young and Bickley made full and voluntary confessions to the officers, not only of the murder, but also of a series of robberies.

As already stated, appellant pleaded guilty to five counts of robbery. These charged the commission of that offense on January 16, 1961, two on January 27, 1961, one on January 30, 1961, and one on January 31, 1961.

On this evidence the jury brought in the first degree murder verdicts. The same jury tried the penalty issue. The first witness called by the prosecution wad Dr. Crahan, one of the two alienists appointed by the court to examine Bickley after he had pleaded not guilty by reason of insanity. Over objection the doctor testified that Bickley, in his opinion, was legally and medically sane at the time of the commission of the offense and at the time of the examination. Appellant contends that inasmuch as he had withdrawn his plea of insanity prior to the selection of the jury the issue of sanity was not before the jury, and such evidence was, therefore, not relevant and its admission violated his constitutional right of freedom from self incrimination.

The evidence as to mental condition was clearly relevant on the trial of the penalty issue, and was admissible under the broad provisions of section 190.1 of the Penal Code. ² Section 1027 of the Penal Code provides for the appointment of alienists when the plea of insanity is entered and authorizes such alienists 'to examine the defendant and investigate his sanity, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question.' Under these sections, when the defendant pleads insanity, the court is empowered to appoint an expert, and such expert may testify as to sanity in any portion of the trial where sanity is in issue. While, by withdrawing the plea of insanity after the court had already appointed the experts and they had already examined him, the appellant removed the issue of sanity from the guilt phase of the trial, because sanity then was no longer material or relevant to that phase of the trial, sanity, in the sense of mental condition, was still at issue on the penalty phase, and was obviously material and relevant on that phase of the trial. Mental condition is one of the facts relating to appellant's 'background and history' and is a fact 'in aggravation or mitigation of the penalty' as those terms are used in section 190.1. Inasmuch as the appointment of the expert and the mental examination of appellant had taken place before the withdrawal of the plea, the expert was emplowered to testify in any phase of the trial where mental condition was a relevant fact.

The contention that to permit the doctor to testify as to the results of his examination of appellant, violated appellant's constitutional privilege against self incrimination is untenable. The constitutionality of section 1027 of the Penal Code has been upheld against such attacks (People v. Strong, 114 Cal.App. 522, 300 P. 84; see also People v. Combes, 56 Cal.2d 135, 149, 14 Cal.Rptr. 4, 363 P.2d 4; People v. Bundy, 168 Cal. 777, 781, 145 P. 537). Appellant submitted to the examination without complaint. He was not compelled to give the doctor information. This he did voluntarily.

After the doctor had given his opinion that defendant was medically and legally sane, he was asked if he had formed any 'opinion as to the defendant's general memtal set up; that is, mental and character conditions of the time you examined him?' Over objection that this did not relate to sanity, the witness was permitted to state, 'Yes. I believe this man is a behaviour problem as a result of a character defect, which is a condition that is irreversible. He is a sadistic, impulsive, criminal type who will not change.'

He was then asked if in his opinion defendant 'is capable or susceptible to any known rehabilitative process.' He replied that defendant, 'because of the nature of the cause' was not susceptible to rehabilitation. He explained this further on redirect when he stated that defendant 'is suffering from a character defect, which at times is called an asociopathic personality.' On recross, when asked to explain this statement, the doctor stated that defendant's personality was incomplete, that 'It is what we call a character defect. There is a hole in his head, figuratively. There is an absence of something that would make him a normal individual, and that cannot be replaced.'

Appellant vigorously attacks this testimony, arguing that, even if evidence of sanity was admissible on the penalty phase, evidence as to whether appellant could be rehabilitated was not. Such evidence obviously related to appellant's mental condition and was admissible (People v. Howk, 56 Cal.2d 687, 16 Cal.Rptr. 370, 365 P.2d 426.) It definitely involved a factor that the jury was entitled to consider in passing on the penalty.

But errors, serious and prejudicial errors, were committed on this phase of the trial. These errors revolve around the erroneous admission of hearsay evidence as to the claimed deterrent effect of the death penalty, which errors were aggravated by the argument of the prosecution to the jury, partially based on that hearsay evidence, that the death penalty was, as to others contemplating crime, a more effective deterrent than life imprisonment.

The prosecutor produced as one of his principal witnesses, Inspector Wiggins. He testified that he had been a detective inspector for Long Beach for 30 years in charge of the robbery and homicide details, and that during that time he had investigated 'hundreds' of robberies. He was then asked if he had any idea of what percentage of such robberies had been committed by persons with empty or simulated guns. He testified that according to his notes about half of all robberies that he had investigated had been committed with unloaded or simulated guns. He was then asked if he had questioned these robbers as to their reasons for...