People v. Jackson

• Decision Date: 25 July 1967
• Docket Number: Cr. 8910
• Citation: 67 Cal.2d 96,60 Cal.Rptr. 248,429 P.2d 600
• Court: California Supreme Court
• Parties: , 429 P.2d 600 The PEOPLE, Plaintiff and Respondent, v. Lawrence Akin JACKSON, Defendant and Appellant. In Bank

Page 248

60 Cal.Rptr. 248

67 Cal.2d 96, 429 P.2d 600

The PEOPLE, Plaintiff and Respondent, v. Lawrence Akin JACKSON, Defendant and Appellant.

Cr. 8910.

Supreme Court of California,

In Bank.

July 25, 1967.

Gladys Towles Root (under appointment by the Supreme Court) and Richard L. Brand, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

A judgment convicting defendant of first degree murder and sentencing him to death was affirmed on appeal. (People v. Jackson (1963) 59 Cal.2d 375, 29 Cal.Rptr. 505, 379 P.2d 937.) Thereafter, because of errors condemned in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33, we issued a writ of habeas corpus and reversed the judgment insofar as it related to penalty. (In re Jackson (1964) 61 Cal.2d 500, 39 Cal.Rptr. 220, 393 P.2d 420.) Upon retrial, defendant waived a jury trial, and the court fixed the penalty at death. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

The essential facts are set forth in our former opinion and need not be repeated. (People v. Jackson, supra, 59 Cal.2d 375, 29 Cal.Rptr. 505, 379 P.2d 937.)

By stipulation the evidence at the penalty retrial consisted of the transcripts of the trial on the issue of guilt and the first trial on the issue of penalty, subject to objections and further testimony. The trial court assumed that Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, applied and deleted from the transcript all of defendant's extrajudicial admissions and all questions and answers of defendant on cross-examination that related to his interrogation. The court, however, did not delete defendant's other testimony that included seriously damaging admissions.

Defendant contends that statements inadmissible under Escobedo v. State of Illinois, supra, 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, were introduced into evidence at his trial on the issue of guilt and that both judgments should therefore be reversed.

We do not reach the question of the admissibility of defendant's statements under Escobedo and Dorado at the trial on the issue of guilt. A judgment that became final before June 22, 1964, the date on which the Supreme Court decided the Escobedo case, cannot be attacked on the A judgment becomes final when all avenues of direct review are exhausted. (People v. Ketchel (1966) 63 Cal.2d 859, 863--865, 48 Cal.Rptr. 614, 409 P.2d 694; In re Spencer (1965) 63 Cal.2d 400, 405, 46 Cal.Rptr. 753, 406 P.2d 33; see Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 409, 86 S.Ct. 459, 15 L.Ed.2d 453; Linkletter v. Walker (1965) 381 U.S. 618, 622, 85 S.Ct. 1731, 14 L.Ed.2d 601.) In the present case the availability of appeal in this court was exhausted on May 1, 1963, when defendant's petition for rehearing was denied (People v. Jackson, supra, 59 Cal.2d 375, 381, 29 Cal.Rptr. 505, 379 P.2d 937). He did not seek certiorari. Thus, almost a year before Escobedo was decided, defendant had exhausted all remedies for direct review of the original proceedings determining his guilt and the penalty. Thereafter this court granted defendant's petition for habeas corpus and reversed the judgment only on the issue of penalty, thereby affording a collateral remedy for a retrospective application of People v. Morse, supra, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33. The scope of this retrial is a matter of state procedure under which the original judgment on the issue of guilt remains final during the retrial of the penalty issue and during all appellate proceedings reviewing the trial court's decision on that issue. (See In re Gaines (1965) 63 Cal.2d 234, 45 Cal.Rptr. 865, 404 P.2d 473; In re Lopez, supra, 62 Cal.2d 368, 370, 42 Cal.Rptr. 188, 398 P.2d 380.)

[429 P.2d 602] basis of that case. (In re Shipp (1965) 62 Cal.2d 547, 549, 43 Cal.Rptr. 3, 399 P.2d 571; In re Lopez (1965) 62 Cal.2d 368, 372, 42 Cal.Rptr. 188, 398 P.2d 380; see Johnson v. State of New Jersey (1966) 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882.)

Defendant also attacks the judgment on the issue of guilt on the ground that his extrajudicial statements were involuntary even if Escobedo does not apply. (See Johnson v. State of New Jersey, supra, 384 U.S. 719, 730, 86 S.Ct. 1772.) He contends that he was given no warnings, that his request to consult with counsel was ignored, that he was allowed to see his mother and aunt in return for a promise to confess, and that he was urged to confess by the district attorney who purported to be advising him.

The trial court in the original trial considered the issue of voluntariness in a full and fair hearing. It heard substantial evidence, including defendant's testimony, that his statements were voluntary, and it admitted them into evidence over objection. Neither on his appeal (People v. Jackson, supra, 59 Cal.2d 375, 377, 29 Cal.Rptr. 505, 379 P.2d 937) nor in his petition for habeas corpus (In re Jackson, supra, 61 Cal.2d 500, 39 Cal.Rptr. 220, 393 P.2d 420) did defendant challenge the voluntariness of his statements.

On this appeal from the judgment on the issue of penalty, the attack on the judgment on the issue of guilt is governed by the rules applicable to a collateral attack. (People v. Polk (1965) 63 Cal.2d 443, 448, 47 Cal.Rptr. 1, 406 P.2d 641.) 'We have consistently held that an issue which is raised in the trial court, and upon which conflicting testimony develops, cannot serve as a basis for habeas corpus; we cannot sanction piecemeal presentation or split adjudication of such issues * * *.' (In re Shipp, supra, 62 Cal.2d 547, 552, 43 Cal.Rptr. 3, 7, 399 P.2d 571, 575, cert. den. (1966) 382 U.S. 1012, 86 S.Ct. 623, 15 L.Ed.2d 528.) Moreover, failure to exercise 'readily available remedies will ordinarily constitute such a deliberate bypassing of orderly state procedures as to justify denial of federal as well as state callateral relief.' (In re Sterling (1965) 63 Cal.2d 486, 489, 47 Cal.Rptr. 205, 208, 407 P.2d 5, 8; In re Shipp, supra, 62 Cal.2d 547, 554--555, 43 Cal.Rptr. 3, 399 P.2d 571; Pen.Code, § 1475.) ¹ Defendant offers With respect to the second trial on the issue of penalty, defendant contends that the court erred in not deleting all of his testimony at the first trial. He correctly points out that such testimony must be deemed a product of the admission of his statements into evidence (People v. Spencer (1967) 66 A.C. 151, 157--161, 57 Cal.Rptr. 163, 424 P.2d 715) and that if those statements were inadmissible at his penalty retrial, his testimony was also inadmissible.

[429 P.2d 603] no explanation for his failure to raise the issue whether his statements were voluntary at the prior proceedings. Under these circumstances the issue may not now be raised.

Whether those statements were inadmissible turns on whether Escobedo and Dorado were applicable to defendant's penalty retrial, which began on October 16, 1964. Although defendant's conviction was final before June 22, 1964, when Escobedo was decided, his retrial on the issue of penalty occurred after that date. Under these circumstances we are persuaded that People v. Doherty (1967) 67 Cal.2d 9, 59 Cal.Rptr. 857, 429 P.2d. 177, is controlling and that Escobedo and Dorado were therefore applicable.

Defendant's extrajudicial statements were taken in violation of Escobedo and Dorado, and his testimony must be deemed a product of the admission of those statements. (People v. Spencer, supra, 66 A.C. 151, 161, 57 Cal.Rptr. 163, 424 P.2d 715.) We cannot say beyond a reasonable doubt that the error in admitting that testimony at the penalty retrial was harmless. (Chapman v. State of California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)

The judgment imposing the death penalty is reversed and the cause remanded for retrial on the issue of penalty only.

TOBRINER, BURKE, SULLIVAN and WHITE, ^* JJ., concur.

CONCURRING AND DISSENTING OPINION

PETERS, Justice.

I agree with the majority insofar as they reverse the judgment imposing the death penalty. I dissent from that portion of the majority opinion that refuses to consider the impact of the errors on the issue of guilt.

This case has been before us several times. On April 2, 1963, we affirmed the first degree murder judgment imposing the death penalty (People v. Jackson, 59 Cal.2d 375, 29 Cal.Rptr. 505, 379 P.2d 937). Thereafter, on July 6, 1964, on habeas corpus, a new penalty trial was ordered becuase of errors condemned in People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33. The judgment was affirmed in all other respects (In re Jackson, 61 Cal.2d 500, 39 Cal.Rptr. 220, 393 P.2d 420). At the new penalty trial, a jury was waived, and again the death penalty was imposed. The present appeal is from that judgment and is automatic. (Pen.Code, § 1239, subd. (b).)

The appellant contends that at both the original guilt trial and at the retrial of the penalty issue there were admitted into evidence admissions and a confession in violation of the rules established in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, and that such errors were highly prejudicial.

The majority find that such errors occurred and require a reversal of the penalty issue, but also hold that such errors cannot be legally considered on the guilt issue. With his latter conclusion I disagree.

It is established law judgments which become 'final' prior to the date of Esco bedo In the present case the availability of appeal was exhausted on May 1, 1963, when defendant's petition for rehearing was denied by this court (People v. Jackson, supra, 59 Cal.2d 375, 381, 29 Cal.Rptr. 505, 379 P.2d 937), and, since certiorari was not sought by defenda...