People v. Riser

• Decision Date: 31 December 1956
• Docket Number: Cr. 5896
• Citation: 305 P.2d 1,47 Cal.2d 566
• Court: California Supreme Court
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard G. RISER, Defendant and Appellant.

Page 1

305 P.2d 1

47 Cal.2d 566

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard G. RISER, Defendant and Appellant.

Cr. 5896.

Supreme Court of California, In Bank.

Dec. 31, 1956.

Rehearing Denied Jan. 30, 1957.

William H. Coburn, Jr., Albany, for appellant.

Edmund G. Brown, Atty. Gen., and Doris H. Maier, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Richard G. Riser and his brother Roscoe R. Riser were charged by indictment with the murder of Earl and Pauline Hastings. The jury returned verdicts of guilty of murder in the first degree, without fixing the punishment at life imprisonment in the case of Richard G. Riser. The court denied his motion for a new trial and sentenced him to death. His appeal to this court is automatic under section 1239(b) of the Penal Code.

Just before midnight on July 11, 1955, Earl and Pauline Hastings, proprietors of the Hilltop Cafe near Oakdale in Stanislaus County, were shot and killed during the course of a robbery of their cafe. Mr. Basford, a customer, left the cafe about 11:30 p. m. On his way out he passed two men who remarked that they were going in to have a beer. He was unable to identify either of the men, but thought that they had driven up to the Hilltop in a two-tone Chrysler, Buick, or Pontiac.

When these men entered the cafe, the only persons present were two customers, Mrs. Burgess and Mr. Pantel, both seated at the bar, and the Hastings. The men sat on stools at the end of the bar away from the other customers and ordered beers. After they had ordered a second round of beers, the shorter of the two rose from his stool, drew a gun, and announced, 'This is a stick-up.' The other man, who was also armed, silently took a position by the front door, while his companion went behind the bar where the Hastings were. In an attempt to prevent the robbery, Mr. Hastings seized a bottle and attacked the gunman. In the ensuing struggle Hastings was struck several times on the forehead and shot. The same gunman then shot and killed Mrs. Hastings, apparently as she was trying to reach a gun. Then he stepped over Mr. Hastings' body, rifled the cash register, and departed with the gunman at the door.

The police arrived shortly after midnight, removed the bodies, and searched and photographed the premises. They recovered several bullets fired by the gunman, and dusted for fingerprints bottles and glasses found on the bar in front of the stools used by the two men.

Mrs. Burgess identified Richard and Roscoe Riser as the two gunmen and testified that Richard had done the shooting. She admitted that she had been in the bar since 7:30 p. m. and had had five beers, that the bar was quite dark, and that she could not see one of the men too well. Mr. Pantel testified that he thought Richard was the man who did the shooting, but was not positive; that he had not seen Roscoe before the police lineup at Stockton, and that the man at the door appeared to be of Filipino or Mexican extraction. Expert witnesses testified that fingerprints found on a bottle and a glass removed from the bar were the fingerprints of Richard Riser, and that bullets found in a brief case in Roscoe's Chrysler were similar in composition to bullets found at the scene of the crime. The killing had been done with a Smith and Wesson .38 Special revolver. This gun was never recovered, but according to expert testimony a holster found in Roscoe's car had once carried a Smith and Wesson .38 Special revolver. The brothers' defense was an alibi: that they had been in Stockton on the night of July 11th.

During the voir dire examination of jurors, Hardy M. Dunavin stated that he did not believe in capital punishment, that nothing would prevent his finding defendant guilty if the evidence warranted it, but that in no event would he vote for the death penalty. In response to the court's question whether he entertained conscientious scruples that would prevent his finding defendant guilty if the offense charged could be punishable with death, he replied, 'No.' On the basis of these answers, and over defendant's objection, the court sustained a challenge by the prosecution under section 1074(8) of the Penal Code.

Section 1074(8) provides that: 'A challenge for implied bias may be taken for all or any of the following causes, and for no other * * * 8. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.' Defendant contends that, although this provision requires the exclusion of jurors whose determination of guilt would be affected by their views of capital punishment, neither its language nor its policy require the exclusion of those whose assessment of punishment alone would be influenced, and that section 190 in providing that a person found guilty of murder in the first degree 'shall suffer death, or confinement in the state prison for life, at the discretion of the jury * * *.' has made the determination of guilt and the assessment of punishment separate questions. The prosecution contends that the statute and decisions of this court require exclusion even when scruples go only to the assessment of punishment.

In support of its position the prosecution cites People v. Ah Chung, 54 Cal. 398, 402, and People v. Amaya, 134 Cal. 531, 535, 66 P. 794 where this court upheld challenges under section 1074(8). In neither of those cases, however, would the effect of the juror's opinion have been confined to the assessment of punishment. Because the jurors stated that they would not find the defendants guilty on the basis of circumstantial evidence alone when the penalty might be death, it was clear that although they were not unqualifiedly opposed to capital punishment, their views of its seriousness would affect their weighing the evidence in the determination of guilt. See also People v. Warner, 147 Cal. 546, 550, 82 P. 196.

Likewise distinguishable is People v. Cebulla, 137 Cal. 314, 317, 70 P. 181, because the juror there stated that his conscience would not permit him to bring in a verdict of guilty. Since the practical effect of permitting such a juror to serve would be to assure acquittal, the distinction between his state of mind and that of juror Dunavin in the present case is not merely verbal. For the same reason People v. Sanchez, 24 Cal. 17, 22, People v. Goldenson, 76 Cal. 328, 346, 19 P. 161, and People v. Miller, 177 Cal. 404, 407, 170 P. 817, are not direct authority in the present situation. In each of these cases the juror stated that his conscientious opinion would affect his determination of guilt. The Sanchez case came at a time when the jury had no discretion to fix the punishment, so that the only way a juror could effectively express his opposition to capital punishment was by finding the defendant not guilty. Similarly in the Goldenson and Miller cases, although the jury had by then been given discretion to choose between death and life imprisonment, it was not yet clear that one juror acting alone could prevent imposition of the extreme penalty. Before People v. Hall, 199 Cal. 451, 453-458, 249 P. 859, it was widely thought that the death penalty remained the norm, and that a unanimous jury was needed to reduce the penalty to life imprisonment, so that the juror's only course was to find the defendant not guilty.

People v. Rollins, 179 Cal. 793, 795-796, 179 P. 209, also came before People v. Hall, and may be distinguished on the same ground as these other cases. But the court articulated a broad reason for excluding from the jury those who are opposed to the death penalty, even though their scruples would not prevent their finding the defendant guilty: '(T)he discretion given to the jury (by section 190) to provide for life imprisonment in such a case is not an arbitrary discretion to be exercised without regard to the circumstances of the particular case, but only where it appears to the jury that there is some circumstance that warrants or justifies the imposition of the lesser punishment.' 179 Cal. at page 796, 179 P. at page 210. General views of the social desirability or moral permissibility of capital punishment could logically have no place among the factors influencing the exercise of a discretion so conceived. See also People v. Collins, 105 Cal. 504, 512, 39 P. 16; People v. Majors, 65 Cal. 138, 148, 3 P. 597; cf. People v. Tanner, 2 Cal. 257, 258-260. Our decisions since the Rollins case have without discussion systematically excluded jurors opposed to the death penalty, apparently accepting the reasoning of the Rollins case in regard to the relation between sections 190 and 1074(8). People v. Riley, 35 Cal.2d 279, 284, 217 P.2d 625; People v. Hoyt, 20 Cal.2d 306, 318, 125 P.2d 29; People v. Kynette, 15 Cal.2d 731, 744-745, 104 P.2d 794, certiorari denied 312 U.S. 703, 61 S.Ct. 806, 85 L.Ed. 1136.

We have recently criticized this interpretation of section 190 in People v. Green, 47 Cal.2d 209, 302 P.2d 307, holding it error to instruct a jury that it must find mitigating circumstances in a case to justify fixing the punishment at life imprisonment. Section 190 does not impose the death penalty, leaving discretion with the jury to substitute a lesser penalty; it imposes neither death nor life imprisonment, but with a perfectly even hand presents the two alternatives to the jury. The Legislature, perhaps because of the very gravity of the choice, has formulated no rules to control the exercise of the jury's discretion.

We did not suggest in the Green case, however, that section 190 did not require of the jurors a meaningful choice between these alternatives, a choice fundamentally based on the evidence and made during and not before deliberation on the verdict. The statute calls for the exercise of a legal discretion, not for the unswerving application of views formulated...