People v. Love

• Decision Date: 02 November 1961
• Docket Number: Cr. 6786
• Citation: 16 Cal.Rptr. 777,366 P.2d 33,56 Cal.2d 720
• Court: California Supreme Court
• Parties: , 366 P.2d 33 PEOPLE of the State of California, Plaintiff and Respondent, v. Albert Ernest LOVE, Defendant and Appellant. . In Bank

Page 777

16 Cal.Rptr. 777

56 Cal.2d 720, 366 P.2d 33

PEOPLE of the State of California, Plaintiff and Respondent, v.Albert Ernest LOVE, Defendant and Appellant.

Cr. 6786.

Supreme Court of California. In Bank.

Nov. 2, 1961.

Rehearing Denied Dec. 1, 1961.

See 17 Cal.Rptr. 481, 366 P.2d 809.

Carl B. Shapiro, under appointment by the Supreme Court, Fairfax, for defendant and appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier and Raymond M. Momboisse, Deputy Attys.Gen., for plaintiff and respondent.

TRAYNOR, Justice.

For the third time a jury has fixed defendant's penalty at death for the murder of his wife.He was first tried in 1958.The jury found him guilty but could not agree on the penalty.A second jury fixed the penalty at death; but the trial court granted a new trial on the ground of newly discovered evidence, and we affirmed.People v. Love, 51 Cal.2d 751, 336 P.2d 169.Defendant was again tried in 1959 and found guilty of murder in the first degree; again the jury fixed the penalty at death.We affirmed the judgment as to the adjudication that defendant is guilty of murder of the first degree and was sane at the time of the commission of the offense.We reversed the judgment as to the imposition of the death penalty because of the admission of evidence tending to inflame and prejudice the jury.People v. Love, 53 Cal.2d 843, 3 Cal.Rptr. 665, 350 P.2d 705.

Upon retrial of the issue of penalty, defendant discharged his attorneys and conducted his own defense.The court cautioned him not to waive counsel; but defendant insisted on defending himself.The jury again fixed the penalty at death.This appeal from the judgment entered on the jury verdict is automatic.(Pen.Code, § 1239, subd. (b).

Defendant contends that the trial court denied him due process by permitting the prosecutor to open and close the penalty trial and the argument to the jury.This procedure was expressly approved in People v. Corwin, 52 Cal.2d 404, 407, 340 P.2d 626.That case governs here, even though a new jury was selected to consider the penalty.People v. Gonzalez, 56 Cal.2d 317, 14 Cal.Rptr. 639, 363 P.2d 871.

Defendant cannot reopen the question of his sanity at the time of the commission of the offense, for the judgment on the issue of insanity was affirmed in People v. Love, supra, 53 Cal.2d 843, 858, 3 Cal.Rptr. 665, 350 P.2d 705.

The court did not err in dismissing defendant's subpoena for Governor Brown and Warden Duffy.Defendant voluntarily dismissed the subpoena for Warden Duffy.He had subpoenaed Governor Brown to elicit his views on capital punishment.The penalties for first degree murder have been fixed by the Legislature.(Pen.Code, § 190.)The wisdom or deterrent effect of those penalties are for the Legislature to determine and are therefore not justiciable issues.Hence evidence as to these matters is inadmissible.Juries in capital cases cannot become legislatures ad hoc, and trials on the issue of penalty cannot be converted into legislative hearings.

The court did not err in denying a change of venue.An application for change of venue is addressed to the sound discretion of the trial court.People v. Burwell, 44 Cal.2d 16, 30, 279 P.2d 744.There has been no showing of abuse of discretion.The court did not err in excusing prospective jurors conscientiously opposed to capital punishment.People v. Riser, 47 Cal.2d 566, 575-576, 305 P.2d 1.During the selection of the jury both sides 'passed' the jury as presently constituted.Thereafter, both the prosecutor and the defendant continued to exercise peremptory challenges.There was no objection to their doing so, and defendant could not have been prejudiced thereby.

Defendant objects to the introduction of two colored photographs of the victim.In People v. Love, supra, 53 Cal.2d at pages 852-853, 3 Cal.Rptr. at page 670, 350 P.2d at page 710, we stated '(t)he photographs in the present case were not exceptionally gruesome.* * * The photographs tend to prove how the shooting occurred and corroborate evidence that defendant intentionally held the gun close to his wife's body to avoid injuring others.'These facts are relevant to punishment as well as to guilt.People v. Jones, 52 Cal.2d 636, 647, 343 P.2d 577.

Defendant contends that the court erroneously admitted evidence and erroneously instructed the jury on the average time between conviction and parole of prisoners serving a life sentence for first degree murder.He insists that parole of prisoners differs from case to case and that statistics on this subject are misleading.

Evidence of the minimum, average and maximum terms actually being served by persons convicted of first degree murder is admissible.People v. Purvis, 52 Cal.2d 871, 884-885, 346 P.2d 22.Moreover, defendant elicited all relevant testimony on the factors that influence parole and that would be considered by the Adult Authority in his case before granting him a parole.The trial court instructed the jury on the minimum period of imprisonment before defendant would be eligible for parole.It also instructed the jury that the actual period of parole depends on a number of factors including his criminal record and his behavior in prison.The court then reviewed the evidence on the mean and median times between conviction and parole served by prisoners sentenced to life imprisonment for first degree murder.In People v. Reese, 47 Cal.2d 112, 116-117, 301 P.2d 582, we held that a jury may be instructed on the minimum time that must be served before a prisoner will be eligible for parole; the instructions in the present case were more favorable to defendant.

Defendant contends that the trial court did not give proper consideration to his motion to reduce the penalty from death to life imprisonment.

After the jurors returned their verdict the court granted defendant a continuance to prepare his motion for a new trial.He then obtained counsel who presented the motion.They urged the court to reduce the penalty to life imprisonment on the ground that the evidence did not justify a sentence of death.The court ruled that it did not have the power to reduce the penalty and could grant a new trial only for errors of law.

Defendant's counsel, invoking People v. Moore, 53 Cal.2d 451, 454, 2 Cal.Rptr. 6, 348 P.2d 584, insisted that the court had the power to reduce the penalty, but the court disagreed, stating: 'Well, it's (the Moore case) a little different, apparently, apparently the remanding of the particular case was not as unlimited as the remanding (of)this case.'The following exchange between court and counsel ensued:

'Mr. Shapiro: No, because the same issue is at stake, isn't it, the only issue'

'The Court: Well, the conditions of the exercise of any discretion are predicated upon either an error of law, or a right on the part of the Court to recommend to the jury the sentence to be imposed, being vested by statute and I don't find that anywhere in the Penal Code under present procedure affecting penalty trials in murder.

'Mr. Shapiro: At the time of remanding this case, after the remand order remanding it in the Moore case, this court, the court in the Moore case was exactly in the same position as the Court is today, I believe.

'The Court: It is rather hard to rationalize, but

'Mr. Shapiro: Beg pardon?

'The Court: The decision would be there, however, in view of the fact that three juries have exercised their conscientious judgment in this regard, I can't say that the death penalty was improper in this case.The motion for a new trial will be denied.'

In People v. Moore, supra, 53 Cal.2d 451, 454, 2 Cal.Rptr. 6, 8, 348 P.2d 584, 586, we declared:

'Although the jury in a jury trial has the exclusive power in the first instance to select the penalty for first degree murder as between death and life imprisonment (citations), this does not affect the power of a trial court, in disposing of a defendant's motion for a new trial, to reduce the punishment from death to life imprisonment.Based upon its own independent view of the evidence, the trial court is not only empowered to reduce the degree or class of the offense (citations), but is also empowered to reduce the penalty imposed.'(Italics added.)

The power of the trial court to review the evidence and to reduce the penalty fixed by the jury is therefore settled.It is also settled that "* * * This court cannot substitute its judgment as to choice of punishment (citation) even where we may doubt the appropriateness of the death penalty (citations).* * * ' Only the trial court has the power to reduce the punishment originally selected by the trier of fact * * *.'People v. Rittger, 54 Cal.2d 720, 734, 7 Cal.Rptr. 901, 909, 355 P.2d 645, 653.

Thus, the trial court has not only the power to reduce the penalty but the duty to review the evidence and to determine whether in its judgment the weight of the evidence supports the jury's verdict.People v. Borchers, 50 Cal.2d 321, 328, 330, 325[366 P.2d 37] P.2d 97.In performing that duty the trial court must "* * * judge the credibility of the witnesses, determine the probative force of testimony, and weigh the evidence. * * *"People v. Sheran, 49 Cal.2d 101, 109, 315 P.2d 5, 10.

It is clear from the record in this case that the trial court not only erred as to the scope of its power to reduce the penalty but also failed to give defendant's motion the consideration required by People v. Moore and People v. Sheran.During most of the discussion of the motion the court was of the opinion that it did not have the power to reduce the penalty.At the time of the ruling on the motion, the court still doubted that it had such power and indicated that even if it had it would not exercise that power because three juries had fixed the penalty at death.

The trial court erred in giving weight to the jury verdict that had been set aside on the grounds of newly discovered evidence and to the jury verdict that...