People v. Reese

• Citation: 47 Cal.2d 112,301 P.2d 582
• Decision Date: 05 October 1956
• Docket Number: Cr. 5923
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James REESE, Defendant and Appellant.

Page 582

301 P.2d 582

47 Cal.2d 112

The PEOPLE of the State of California, Plaintiff and Respondent, v. James REESE, Defendant and Appellant.

Cr. 5923.

Supreme Court of California, In Bank.

Oct. 5, 1956.

Edward T. Mancuso, Public Defender, and Robert Nicco, Deputy Public Defender, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

Thomas C. Lynch, Dist. Atty., and Cecil F. Poole, Asst. Dist. Atty., San Francisco, amici curiae on behalf of respondent.

PER CURIAM.

Defendant was indicted on seven counts for the murder of Georgia Barrett, on December 26, 1955, and of Elizabeth Simpson on December 28, 1955, assault with intent to murder Betty Luke on December 26, 1955, burglary of Luke's apartment, Barrett's apartment and Simpson's apartment, and the rape of Elizabeth Simpson on December 28, 1955. By amendment he was also charged with a prior felony conviction, which he admitted. He pleaded not guilty and not guilty by reason of insanity to the seven counts and the jury found him sane and guilty on all counts, specifying the murders and burglaries as of first degree and making no recommendation as to the penalty for the murders. Judgment was accordingly entered imposing the death penalties for each of the murders and that prescribed by law for the other counts. The case is here by automatic appeal from the judgment and order denying a motion for a new trial. No contention is made that the evidence does not support the judgment. Defendant did not testify.

The evidence shows that about midnight on December 25, 1955, an intruder entered Mrs. Luke's apartment at 950 Eddy Street in San Francisco. A struggle ensued and the intruder demanded, 'Your money or your life.' Mrs. Luke was hit on the head with a chair and cut with a knife. The intruder fled. His general description fit that of defendant and the latter left a button from his coat on the floor. The intruder took a knife from the Luke's kitchen. Blood of the type of Mrs. Luke's and defendant's was found in the apartment.

On December 26, 1955, at about 6:00 a. m., a short distance from the Luke's place, Georgia Barrett was slain by a stab in the neck causing her to bleed to death. Before she died, Georgia gave a description of her assailant which was generally that of defendant. In her room was a great deal of blood and the knife that had been taken from the Luke's apartment. Defendant's clothes had blood on them of the type of Georgia's.

About 2:30 a. m. on December 28, 1955, defendant returned to his room at an apartment building at 1230 O'Farrell Street, which was on the same floor as that on which Elizabeth Simpson, a 13-year-old girl, lived with her mother. Elizabth's mother awakened and finding Elizabeth gone from her bed and blood on the bed, notified the police who, when they came, roused all the tenants but could get no response at defendant's room. They forced an entrance, defendant having pushed a refrigerator against the door, and there found Elizabeth's body. A knife was lying on top of it. Defendant had fled through his window and down the fire escape when he saw the police cars in the street. A short time later he was arrested at the Pacific Greyhound bus depot where he told the police, in reply to why he did it, that he guessed it was the wine; it made him crazy. Elizabeth died from stab wounds in her neck. There was spermatozoa in her vagina. Her body was mutilated in that her breasts were amputated and abdomen slashed. Defendant's ring was found in Elizabeth's room and a trial of blood ran from there to defendant's room.

Defendant contends that he was deprived of a fair trial in violation of his constitutional rights to not testify because his prior conviction of a felony was improperly brought to the jury's attention. He asserts that he was entitled to desist from taking the witness stand; that inasmuch as he admitted the prior conviction and did not testify, there was no basis for injecting the prior conviction into the trial and that he was prejudiced by its presentation to the jury. He cites section 1025 of the Penal Code ¹ and People v. Beal, 108 Cal.App.2d 200, 239 P.2d 84, and People v. Cordero, 92 Cal.App.2d 196, 206 P.2d 665.

Inasmuch as defendant did not testify and admitted the prior conviction, it was not proper to bring it to the attention of the jury, but defendant has not established such a situation here. He did admit the prior conviction and did not testify, nor was there any attempt to compel him to testify. He refers to the district attorney's argument to the jury, ² and the instruction offered by the prosecution and given to the jury, ³ and the fact that the jury had been sitting as such in other cases (what kind does not appear) and had had experience. From these things he argues that the jury was in effect told that defendant had suffered a prior conviction, otherwise there would be no occasion to the reference to seven years by the district attorney and nine years in the instruction.

We do not so interpret the record. Nothing was said about a prior conviction and to give defendant's argument force would require the jury to know more law than is to be supposed. It is too remote a possibility that the jury would infer that defendant suffered a prior conviction from the circumstances that they were told of the possibility of parole involved in a life sentence. Defendant agrees that it is proper for the jury to be advised of the possibility of parole in a life sentence where the punishment, life imprisonment or death, is left to the jury. We said in People v. Barclay, 40 Cal.2d 146, 158, 252 P.2d 321, 327: '(T)he jury is not allowed to weigh the possibility of parole or pardon in determining the guilt of the defendant, and it is therefore error to give an instruction that allows the jury to take into consideration the consequences of a recommendation of life imprisonment in arriving at that determination. * * * To aid the jury in fixing the punishment of the defendant, however, the court may instruct the jury as to the consequences of the different penalties that may be imposed so that an intelligent decision may be made. People v. Chessman, 38 Cal.2d 166, 189-190, 238 P.2d 1001; People v. Osborn, 37 Cal.2d 380, 384-385, 231 P.2d 850; People v. Caetano, 29 Cal.2d 616, 619, 177 P.2d 1; People v. La Verne, 212 Cal. 29, 31, 297 P. 561; People v. Hall, 199 Cal. 451, 459, 249 P. 859; People v. Hong Ah Duck, 61 Cal. 387, 393. In the Osborn case, the court informed the jury that a recommendation of life imprisonment without possibility of parole would not be binding, thus impliedly answering in the affirmative the question of the jury whether a person sentenced to life imprisonment might be paroled. We stated: 'It is understandable that jurors, who are charged with the duty of fixing the penalty in the event that they find a defendant guilty of first degree murder, should be interested in knowing the nature and effect of the penalties which they may impose; and neither reason nor authority indicates that the trial court should be prohibited from enlightening the jurors when questions are asked upon the subject.' 37 Cal.2d at page 385, 231 P.2d (850) at page 853. Recently, in People v. Chessman, supra, it was held that there was no error in informing a jury that when a person is sentenced to life imprisonment without possibility of parole there nevertheless remains the chance that the defendant will be freed by pardon, commutation, or action of the Legislature. The recent decision of this court thus establish that a jury may consider the consequences of a recommendation of life imprisonment in determining the punishment of the defendant, although it may not consider the possible penalties in determining the guilt of the defendant.' (Emphasis added.) See, also, People v. Byrd, 42 Cal.2d 200, 266 P.2d 505.

In this same connection defendant urges that the prosecution intended to bring the prior conviction to the jury's attention in that the jury instruction heretofore quoted as offered by the prosecution contained the words 'seven years' or, in the case of one who has been convicted of a felony, perhaps a longer period. The instruction was given as heretofore quoted, however, and we fail to see how the prosecution's intention is important.

As a further attack on the quoted instruction defendant claims that the time would be at least 10 years instead of the nine years under section 3024 ⁴ of the Penal Code. The prosecution cited sections 3020, 3040 and 3046 of the Penal Code as authority for the instruction. Section 3046 provides: 'No prisoner imprisoned under a life sentence may be paroled until he has served at least seven calendar years. The board shall, in considering a parole for such prisoner, consider all statements and recommendations which may have been submitted by the judge, district attorney, and sheriff, pursuant to Section 1203.1, or in response to notices given under Sections 3022 and 3042, and recommendations of other persons interested in the granting or denying of such parole. The board shall enter on its order granting or denying parole to such prisoners, the fact that such statements and recommendations have been considered by the board. Such statements and recommendations shall, however, be and remain confidential.' The prosecution claims that section 3024, supra, is not applicable because under paragraph (e) thereof of there must have been a charge that defendant was armed with a deadly weapon and such charge must be found true, and no such charge was made here. They also urge the section 3046 is controlling as it specially deals with parole of one imprisoned for life. This last argument appears meritorious for section 3024 is in a portion of the Penal Code dealing with the length of sentence and the fixing thereof while section 3046 is in the group of sections dealing with paroles. The...