People v. Love

• Court: United States State Supreme Court (California)
• Citation: 17 Cal.Rptr. 481,56 Cal.2d 720
• Docket Number: Cr. 6786
• Parties: , 366 P.2d 809 PEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Albert Ernest LOVE, Defendant and Appellant.
• Decision Date: 01 December 1961

Page 481

17 Cal.Rptr. 481 56 Cal.2d 720, 366 P.2d 809 PEOPLE of the State of Callfornia, Plaintiff and Respondent,
v.
Albert Ernest LOVE, Defendant and Appellant. Cr. 6786. Supreme Court of California, In Bank. Dec. 1, 1961.

[56 Cal.2d 748] SCHAUER and McCOMB, Justices (dissenting opinion to order denying rehearing).

The Attorney General has filed on behalf of The People of California a petition for rehearing in which he presents facts, law, and argument supporting his request that this court reconsider its majority decision filed November 2, 1961. The petition has been denied but the arguments of the Attorney General remain fundamentally unanswered.

Such arguments are founded on facts which have been generally recognized in organized society since time immemorial and on the law of this state as it had existed in all material respects, until the majority's unprecedented pronouncement, from at least the time that the Penal Code was adopted in 1872. Only the fiat of the majority denies validity to the clearly expressed intention (and implied finding) of the Legislature (Pen.Code, §§ 190 and 190.1) that evidence and argument in aggravation of the penalty mean evidence and argument for the penalty of death, while evidence and argument in mitigation of penalty seek so-called life imprisonment in contrast to death. How can it be said that a governor can commute a death sentence to imprisonment unless the latter be a mitigated, i. e., a lesser punishment? A mitigated punishment is, of course, a lesser deterrent than an aggravated punishment. If this be not true, we should abandon a society based on the premise that man is a free agent; a fortiori we should scrap the entire system of modern penology because it is based on the concept that man is a free moral agent, a reasoning being responsive to sanctions and benefits. And if the aggravated punishment is not a greater deterrent than the [56 Cal.2d 749] lesser then it would be simply cruel and unnecessary; hence it would violate section 6, article I of our Constitution and be void.

Page 482

[366 P.2d 810] We observe that as a matter of simple logic the majority's decision must inevitably tend to encourage murders in the commission of crimes of violence, hence to increase for every citizen, and particularly for law enforcement officers, the hazard of death by violence; further, we note that the opinion fails to respect the necessarily implied finding of the Legislature as to the deterrent effect of the death penalty, implicit in the express provisions for the trial of the penalty issue in capital cases (see Pen.Code, §§ 190 and 190.1) which were enacted following and implementing our decision in People v. Friend (1957) 47 Cal.2d 749, 764(8), 766 (fn. 8), 767(13), 306 P.2d 463. Instead of respecting, the majority opinion effectually emasculates, the penalty selection provisions of section 190.1 and overrules the decision which the Legislature had thereby implemented and which concededly had been the law of this state when the case was tried.

Because the petition for rehearing (signed by Attorney General Stanley Mosk, by Assistant Attorney General Doris H. Maier, and by Deputy Attorney General Raymond M. Momboisse) so cogently, albeit respectfully, presents the case for the People, and because of the grave import of this decision to peace officers, to the law abiding public and to the Legislature, we deem it proper to, and we do, incorporate herein the major portion of the petition, as follows:

'This Court has held that it was error for the district attorney to argue that the death penalty is a more effective deterrent than life imprisonment as there is no legislative finding, and it is not a matter of common knowledge, that capital punishment is or is not a more effective deterrent than imprisonment. Further, this Court found that it was error for the prosecutor to assert, without any evidence in the record, that many criminals use empty guns and that they do so because of the fear of the death penalty.

'Certainly it was the intent of the Legislature in enacting section 190.1 of the Penal Code to codify the law as expressed in People v. Friend, 47 Cal.2d 749 (306 P.2d 463), that at the penalty phase the jury should be fully advised of the consequences of the penalties which maight be imposed.

'This Court in People v. Friend, 47 Cal.2d 749, at 765-768 (306 P.2d 463), held that to aid the jury to act intelligently[56 Cal.2d 750] in making their selection of the alternative penalties, counsel may properly argue their respective views as to which punishment, under all the circumstances shown, will be more appropriate and desirable in the cause of justice. To that end, appeals to reason in the exercise of the jury's discretion were held to be proper, as were appeals for clemency or for stern retribution.

'This Court went on to outline the great responsibility placed upon members of the jury and the difficultness of that verdict. Naturally in the conscientious discharge of their duty, jurors are eager to have, and have a right to have given to them, all the guidance the law can offer. Among those things which this Court at that time felt were essential for an intelligent determination by the jury were arguments as to which penalty will better serve the objectives of punishment. Among those objectives this Court recognized deterrents (sic) to the offender, and other prospective offenders.

'People v. Friend was decided on January 25, 1957. In that same year the Legislature added section 190.1 to the Penal Code, in which it was provided that there should be a separate trial to pass on the question of penalty when one of the alternative penalties was death. At that trial 'Evidence may be presented * * * of the circumstances surrounding the crime, of the defendant's background and history, and of any facts in aggravation or mitigation of the penalty.'

'It is presumed that the Legislature at the time it enacted this statute knew of the decision of this Court in the case of People v. Friend, 47 Cal.2d 749 (306 P.2d 463) (Krusior v. Silver, 54 Cal.2d 603, 618 (7 Cal.Rptr. 129, 354 P.2d 657)).

Page 483

[366 P.2d 811] 'Indeed it could be said, as was held by this Court in People v. Nash, 52 Cal.2d 36, 47 (338 P.2d 416), that it is apparent the Legislature had in mind the law and presumably knew of the existing domestic decisional law in this regard and intended not to change it. Rather, by utilizing the judicially construed words 'aggravation or mitigation of the penalty,' the Legislature indicated its intent that the judicial definition should continue as the law of this State.

'After the enactment of section 190.1 of the Penal Code and its amendment in 1959 (Stats.1959, Ch. 738) this Court in People v. Love, 53 Cal.2d 843, 856 (3 Cal.Rptr. 665, 350 P.2d 705), indicated that the Friend decision still stated the permissible range on inquiry on the issue of penalty.

'We respectfully suggest that the opinion of this Court in People v. Friend was correct, that it was adopted by the [56 Cal.2d 751] Legislature when it enacted section 190.1 of the Penal Code and should be the controlling law in this case.

'This Court has repeatedly held that the jury could be informed of the minimum term a person given a life sentence for first degree murder must serve and the minimum average and maximum terms actually being served for first degree murder in California (People v. Purvis, 52 Cal.2d 871, 884 (346 P.2d 22); People v. Friend, 47 Cal.2d 749, 755 (306 P.2d 463); People v. Green, 47 Cal.2d 209, 217 (302 P.2d 307)). The reason put forth by the court was that such matter is essential in ascertaining the significance of a life sentence and thus at arriving at an intelligent evaluation of the penalty to be imposed.

'Certainly the same is equally true when dealing with the deterrent effect of the penalties involved.

'We respectfully suggest that the opinion of this Court in People v. Friend was correct, and that it is essential that the jury be advised of the deterrent effect of capital punishment in order that they may intelligently and effectively perform the grave responsibility given to them.

'We are thus confronted with the question of whether or not capital punishment is a deterrent.

'Logically it is indisputable that death is the greatest deterrent possible and as stated by Justice McComb it is a matter of common knowledge that the death penalty is a deterrent.

'The use of the word 'lawfully' in our criminal statutes implies that the person knows what he is doing,...