People v. Polk

• Citation: 63 Cal.2d 443,47 Cal.Rptr. 1,406 P.2d 641
• Decision Date: 20 October 1965
• Docket Number: Cr. 8312
• Court: United States State Supreme Court (California)
• Parties: , 406 P.2d 641 The PEOPLE, Plaintiff and Respondent, v. Ronald Howard POLK and George Anthony Gregg, Defendants and Appellants.

Page 1

47 Cal.Rptr. 1

63 Cal.2d 443, 406 P.2d 641

The PEOPLE, Plaintiff and Respondent, v. Ronald Howard POLK and George Anthony Gregg, Defendants and Appellants.

Cr. 8312.

Supreme Court of California, In Bank.

Oct. 20, 1965.

Claude O. Allen and Chris G. Gasparich, Oakland, under appointment by Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

Defendants were convicted of conspiracy to commit kidnaping for the purpose of robbery (Pen.Code, §§ 182, 209) and of the first degree murder of William Fambro. (Pen.Code, § 189.) The jury fixed the penalty at death on the murder count, and defendants were sentenced to prison for the term prescribed by law on the kidnaping count and to death on the murder court. On appeal, the judgments were reversed for a new penalty trial only. People v. Polk, 61 Cal.2d 217, 234, 37 Cal.Rptr. 753, 390 P.2d 641.) Upon retrial, the jury again fixed the penalty for each defendant 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. Polk, 61 Cal.2d 217, 37 Cal.Rptr. 753, 390 P.2d 641.)

At the second trial on the issue of penalty, there was not also evidence that Polk admitted complicty in the killing of a gas station attendant, Raymond Sweet, on March 17, 1962, and, with Jesse Ferguson, in kicking to death in Los Angeles on April 10, 1962, a skid row inhabitant called 'The Hook.'

Defendants were arrested in Los Angeles on May 20, 1962. The police began to question then on the day they were arrested and continued to do so for several months thereafter. They obtained numerous confessions concerning the murder of Fambro and other incidents of the alleged conspiracy. One officer estimated that he talked to defendant Polk ten times. At the and to defendant Polk ten times. At the trial on the issue of guilt, transcripts of some of these statements, tape recordings of some, and police testimony describing others were admitted into evidence against both defendants. At the second penalty trial, a tape recording of one of Gregg's confessions, police testimony describing some of his other confessions, and police testimony describing Polk's confession of other crimes were admitted into evidence. Their testimony at the trial on the issue of guilt was also read into evidence.

Confessions are inadmissible if they were obtained when '(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he waived these rights.' (People v. Dorado, 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.) The confessions were admitted into evidence at the trial on the issue of guilt and at the second penalty trial in violation of this rule.

All the confessions admitted into evidence were made after defendants had been arrested. All were obtained during several months of persistent police interrogation designed to elicit incriminating statements about many crimes. '(W)hen the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, the accusatory or critical stage has been reached and the suspect is entitled to counsel.' (People v. Stewart, 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 204, 400 P.2d 97, 100.) The first confession regarding the Fambro murder, the tape recording of defendant Gregg on June 2, begins: 'George, in your own words * * * tell us as you told us before exactly what happened pertaining to this sailor boy.' Similarly, Sergeant Brooks testified that defendant Polk's first statement about the killing of 'The Hook' was obtained as follows: 'I told him we were pretty sure that Jesse Ferguson had been involved and I was fairly certain that he was with Jesse when 'The Hook' was killed, and I asked if he was, and he said, 'Yes."

There is no evidence that defendants were at any time advised of their right to counsel or of their absolute right to remain silent, and we cannot presume that they were so advised. (People v. Stewart, supra, 62 Cal.2d 571, 581, 43 Cal.Rptr. 201, 400 P.2d 97.) Accordingly, all the confessions should have been excluded. (People v. Dorado, 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 398 P.2d 361.)

The Attorney General contends that the judgment on the issue of guilt was final before the decision in Escobedo v State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, thereby precluding reversal on the grounds of that decision. (In re Lopez, 62 Cal.2d 368, 376, 42 Cal.Rptr. 188, 398 P.2d 380.) There is no merit in this contention. The judgment on the issue of guilt was affirmed on March 31, 1964. (People v. Polk, 61 Cal.2d 217, 37 Cal.Rptr. 753, 390 P.2d 641.) Within the 90 days thereafter in which defendants could have applied for certiorari (see 28 U.S.C. § 2101 (d); rule 22, Rules of the United States Supreme Court), on June 22, 1964, the United States Supreme Court decided the Escobedo case. Thus the judgment on the issue of guilt was not final at the time of Escobedo, since the United States Supreme Court has stated that '(b)y final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed * * *.' (Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 1734, fn. 5, 14 L.Ed.2d 601.) In the Linkletter case, when faced with the retroactivity of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the United States Supreme Court made clear that judgments not final at the time of the Mapp decision were reviewable by a writ of habeas corpus. Accordingly, federal habeas corpus will also be available to review judgments not final at the time of the Escobedo decision that are attacked on the basis of the rule in that case. (See Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837.) As we pointed out in In re Spencer, 63 Cal.2d 400, 405, 46 Cal.Rptr. 753, 757, 406 P.2d 33, 37 'Whether or not we are compelled to afford defendants a comparable state collateral remedy (see Case v. State of Nebraska (1965) 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422; Henry v. State of Mississippi, supra, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; In re Shipp (1965) 62 A.C 573, 579, 43 Cal.Rptr. 3, 399 P.2d 571, fn. 2; 76 Harv.L.Rev. 1253, 1269 (1963)), the availability of the federal remedy makes it pointless for us to refuse to do so, when, as in this case, defendant is entitled to a new trial on the issue of penalty. Moreover, the grant of state collateral relief in these circumstances accords with our traditional habeas corpus rules. This court normally affords collateral relief on constitutional grounds if the petitioner had no opportunity to raise the constitutional issue at trial and on appeal. (See In re Dixon (1953) 41 Cal.2d 756, 760-761, 264 P.2d 513; In re Shipp, supra, 62 A.C. 573, 577-579, 43 Cal.Rptr. 3, 399 P.2d 571.) Petitioner had no such opportunity when, as in this case, the new constitutional right had not been declared at those times. (See People v. Hillery (1965) 62 A.C. 726, 745, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Kitchens (1956) 46 Cal.2d 260, 262-263, 294 P.2d 17.)' The attack on the judgments on the issue of guilt on this appeal from the judgment on the issue of penalty is comparable to a collateral attack thereby requiring us to follow our practice on collateral attack by granting relief.

There is no merit in the Attorney General's contention that even if the confessions were admission was not prejudicial bedo, their admission was not prejudicial since defendants took the stand and testified to committing the same acts described in their confessions. When defendants testified, the only substantial evidence connecting them with the Fambro murder, for which the jury fixed the penalty at death, was their inadmissible extrajudicial confessions and admissions. The defendants had no evidence but their own testimony to present on their own behalf. Thus their failure to take the stand would have made verdicts of guilty certain after the prosecution's introduction of the numerous confessions. Defendants therefore took the stand and again confessed, presumably hoping that the jury would find them guilty of a lesser offense than first degree murder. Thus, their testimony was impelled by the erroneous admission of the confessions and cannot be segregated therefrom to sustain the judgment. (Fahy v. State of Connecticut, 375 U.S. 85, 91-92, 84 S.Ct. 229, 11 L.Ed.2d 171; People v. Davis, 62 Cal.2d 791, 796, 44 Cal.Rptr. 454, 402 P.2d 142; People v. Dixon, 46 Cal.2d 456, 458, 296 P.2d 557; People v. Ibarra, 60 Cal.2d 460, 463, 34 Cal.Rptr. 863, 386 P.2d 487; see also People v. Mickelson, 59 Cal.2d 448, 449, 30 Cal.Rptr. 18, 380 P.2d 658.) Moreover, some of the extrajudicial confessions were more prejudicial to the defendants than their trial testimony. Thus, in the tape recording of defendant Gregg's first statement, he confessed to a more active role in the Fambro killing than he admitted at the trial. The prejudicial effect of the admission of this tape recording is emphasized by the fact that at the second penalty trial the jury returned to the courtroom and requested that the instructions be given again, stat Gregg's tape-recorded statement be replayed, and that parts of his testimony be reread.

Since the violations of Escobedo affected the whole trial, the judgments on both...