People v. Price

• Decision Date: 01 October 1965
• Docket Number: Cr. 7646
• Citation: 63 Cal.2d 370,46 Cal.Rptr. 775,406 P.2d 55
• Court: California Supreme Court
• Parties: , 406 P.2d 55 The PEOPLE, Plaintiff and Respondent, v. Richard PRICE, Defendant and Appellant.

Page 775

46 Cal.Rptr. 775

63 Cal.2d 370, 406 P.2d 55

The PEOPLE, Plaintiff and Respondent, v. Richard PRICE, Defendant and Appellant.

Cr. 7646.

Supreme Court of California, In Bank.

Oct. 1, 1965.

As Modified Oct. 27, 1965.

William O. Weissich, under appointment by the Supreme Court, San Rafael, for defendant and appellant.

Thomas C Lynch, Atty. Gen. Albert W. Harris, Jr., and John F. Kraetzer, Deputy Attys. Gen., for plaintiff and respondent.

PEEK, Justice.

Richard Price was charged by indictment in Count I with the murder of Charles Sorensen, in Count If with the murder of Hale Humphrey, in Count III with robbery committed against Charles Sorensen, and in Counts IV and V with auto thefts. He was found guilty by a jury of the crimes charged in Counts I, II, IV and V and of grand theft of a pistol, a lesser included offense, as to Count III. The murders were found to be of the first degree.

The jury further found, on defendant's plea of not guilty by reason of insanity, that he was sane at the times of the commissions of the offenses of which he stood convicted.

On the penalty phase in connection with the first degree murder verdicts the jury fixed punishment at death as to each conviction. The appeal is automatic pursuant to section 1239, subdivision (b), of the Penal Code. On March 15, 1963, defendant, then not yet 19 years of age, accompanied by a juvenile, Jack Sikes, entered a service station in the City of Lodi, shot a customer in the leg, and drove off with a Dodge automobile belonging to the station owner. The California Highway Patrol was immediately notified, and Officer Charles Sorensen answered the call. He pursued defendant and his accomplice on Highway 12 at speeds of 85 to 90 miles per hour. During the chase defendant shot at automobiles passing in the opposite direction, apparently hoping to cause an accident and thereby halt Sorensen's pursuit. In Rio Vista defendant crashed the Dodge, and with his accomplice fled on foot through a gate and around the side of a vacant house. Officer Sorensen followed on foot and as he passed through the gate and around the corner of the house defendant fired two shots at close range, killing the officer instantly.

Defendant then procured the officer's pistol and with his accomplice took the patrol car and continued west on Highway 12. Deputy Sheriff Hale Humphrey and others, having been alerted, set up a road block of vehicles across the highway. Defendant deliberately drove the patrol car at a speed estimated to have been in excess of 100 miles per hour into the vehicles blocking the road, causing the death of Humphrey.

The defendant does not question the sufficiency of the evidence to support the verdict as to each of the crimes of which he stands convicted. It is argued, however, that the judgment must be reversed because the court erred prejudicially: (1) in giving some and refusing to give other instructions, (2) in denying a motion for a change of venue, (3) in commenting and allowing the district attorney to comment upon defendant's failure to testify in his own behalf, (4) in receiving into evidence certain incriminating statements made by defendant in the absence of counsel and without apprising defendant of his rights, and (5) in instructing and allowing evidence and argument on the penalty phase concerning the possibility of parole in the event defendant was sentenced to life imprisonment.

The prosecution takes issue with each of defendant's contentions, except the charged impropriety of the testimony, instructions and argument relative to the possibility of parole. In this connection the state, with commendable forthrightness, concedes that the proceedings contravened the rules later announced by this court in People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33. The state's contention that the error was not prejudicial, however, fails to meet the test of People v. Hamilton, 60 Cal.2d 105, at page 137, 32 Cal.Rptr. 4, at page 23, 383 P.2d 412, at page 431, wherein we held that 'any substantial error occurring during the penalty phase of the trial, that results in the death penalty, since it reasonably may have swayed a juror, must be deemed to have been prejudicial.' (See also, People v. Hines, 61 Cal.2d 164, 37 Cal.Rptr. 622, 390 P.2d 398.) A reversal on the penalty phase is thus indicated. However, we find further merit in defendant's fourth contention and have concluded that the judgment must be reversed on the guilt phase as well due to the reception into evidence of incriminating statements clearly within the scope of those later denounced by this court in People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361. Accordingly, only brief comment need be made as to defendant's three remaining contentions.

Defendant's initial contention is that the court erred in failing to instruct on its own motion that where the People's case rests substantially on circumstantial evidence the circumstances must be entirely consistent with guilt and inconsistent with any other conclusion. However, where as here the People's case rests chiefly on direct evidence, such an instruction is not necessary. (See People v. Malbrough, 55 Cal.2d 249, 10 Cal.Rptr. 632, 359 P.2d 30.) Without recounting the evidence in detail suffice to say that there is more than sufficient direct evidence as to each of the crimes of which defendant was convicted aside from the statements improperly received into evidence. Thus, the instruction on circumstantial evidence, which defendant did not request, was not required. (People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865; People v. Zurica, 225 Cal.App.2d 25, 37 Cal.Rptr. 118.)

A further claim of error in instructions is made in connection with the court's definition of 'malice' in the language of section 7, subdivision 4, of the Penal Code, ¹ as applied to the crime of murder. The court also instructed in the language of section 188 of the Penal Code. ²

Instructions in the language of both sections do not, without more, constitute prejudicial error. (People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492; People v. Chavez, 37 Cal.2d 656, 234 P.2d 632; People v. Harris, 169 Cal. 53, 145 P. 520; People v. Dice, 120 Cal. 189, 52 P. 477; People v. Waysman, 1 Cal.App. 246, 81 P. 1087.) No specific claim of prejudice is made and none is apparent in the instant circumstances. Moreover, it appears that defendant himself requested the instruction in the language of section 7, subdivision 4, and any error which may have resulted must be deemed to have been invited.

The denial of defendant's motion for change of venue, also urged as a ground for reversal, is predicated upon claimed undue television and other publicity throughout the county which is further claimed to have made it improbable, if not impossible to impanel an objective jury in the county. Because these claimed circumstances will, in all likelihood, not continue to prevail upon retrial, no useful purpose will be served by comment at this time.

Defendant's third contention, that comments on his failure to testify in his own behalf fall within the proscription against self-incrimination prohibited by the Fifth and Fourteenth Amendments, now appears to be well taken. Recent decisions of the United States Supreme Court, filed during the pendency of the instant appeal, are in accord (Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653), even in those situations where the comments are confined within the limits established in section 13 of article I of the California Constitution (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106). The further question whether the error was prejudicial within the meaning of section 4 1/2 of article VI of our state Constitution or Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, and for that reason requires a reversal, need not be resolved at this time (see People v. Bostick, Cal., 44 Cal.Rptr. 649, 402 P.2d 529, as the judgment must be reversed for the independent reasons heretofore mentioned and presumably the error will not recur on any retrial.

Defendant's remaining contention, that reversible error resulted from the admission, over objections, of certain incriminating statements made by him prior to the time he was represented by counsel or advised as to his rights in connection therewith, requires exposition of the circumstances under which the statements were made.

Following the crash into the roadblock on March 15 defendant was treated for his injuries, placed in a body cast and, while under arrest, confined to a hospital detention room. The indictment was returned on Mrach 21 and defendant was arraigned on March 25, 1963. Counsel was appointed on that latter date.

Three statements were made by defendant and recorded prior to his arraignment and the appointment of counsel. The first, made on March 18 while defendant was confined to the hospital, was a detailed statement solicited by and given to the district attorney. This statement, which was recorded in shorthand and later transcribed and read into the record, was an unequivocal recital of acts which would compel the finding of guilt as to each of the crimes charged. Defendant was not advised of his right to counsel or of his rights generally other than by an admonition to the effect that he could expect no leniency and that his statements could be used against him.

A secound statement was taken by the district attorney on March 25 before the appointment of counsel on that date. This statement was made while defendant was in an ambulance waiting to be brought into the courthouse for arraignment. Again the record shows that defendant was not advised of any of his rights or otherwise admonished in any manner. The statement generally expanded upon the earlier statement concerning the events which had transpired at the service station in Lodi. As before, the statement was recorded in shorthand,...