People v. Sears

• Citation: 450 P.2d 248,74 Cal.Rptr. 872
• Decision Date: 20 February 1969
• Docket Number: Cr. 10699
• Court: United States State Supreme Court (California)
• Parties: The PEOPLE, Plaintiff and Respondent, v. Earl Clarence SEARS, Defendant and Appellant.

Page 872

74 Cal.Rptr. 872

450 P.2d 248

The PEOPLE, Plaintiff and Respondent, v. Earl Clarence SEARS, Defendant and Appellant.

Cr. 10699.

Supreme Court of California,In Bank.

February 20, 1969.

Edward D. Nino, San Jose, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and John T. Murphy, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

In 1963 a jury found defendant guilty of the first degree murder of his stepdaughter Elizabeth Olives, the attempted murder of his wife Clara Sears, and the attempted murder of his mother-in-law Frances Montijo. The penalty for the murder was fixed as death. On appeal this judgment was reversed, largely because of the erroneous admission of a confession. (People v. Sears, 62 Cal.2d 737, 44 Cal.Rptr. 330, 401 P.2d 938) A second trial started on September 28, 1966, but this ended with a mistrial on October 11 because the prosecutor asked defendant a palpably improper question. Defendant's third trial commenced on October 18, 1966. The jury returned the same verdict as the jury in the first trial, and again fixed death as the penalty for the murder. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

Defendant married Clara Sears in 1960. The spouses agreed that Clara and her three children by a former marriage would continue living in a cottage which she and the children had occupied before the marriage, while defendant would sleep in a nearby garage until he completed an addition to the cottage. Defendant never completed the addition, and Clara refused to let defendant sleep in the cottage even after one of her daughters married and moved out.

Around the end of April 1963 defendant moved to a hotel. On Sunday, May 12, defendant visited his wife. According to her testimony, defendant threatened that he would kill her and the children if she got a divorce.

On May 16, 1963, defendant completed his work for the day and went to a neighborhood tavern where he drank beer with friends until about 7:30 p.m. Defendant then returned to his hotel and went to dinner with one Robert Kjaerbye. At 10 p.m. the two went to a tavern where defendant was a regular customer. After each man had drunk a beer, they drove approximately one block to the cottage occupied by Mrs. Sears.

Defendant and Kjaerbye entered the cottage through the unlocked front door. While Kjaerbye stayed in the living room, defendant went into the bedroom. Elizabeth was asleep and Clara was reading. Defendant told Clara that he wanted to talk with her, and she put on a robe and accompanied defendant to the kitchen. Because the floor was cold, Clara returned to the bedroom to get a pair of slippers. As she re-entered the kitchen, defendant grabbed her robe and said, "If you don't want to come back to me. * * * " Then defendant unbuttoned his shirt and drew out an iron bar that he had stuck in his pants before entering the cottage. He struck Clara about the head until she lost consciousness. Elizabeth awakened and approached the kitchen. As she cried out for defendant to leave her mother alone, defendant turned on the child with the iron bar. Clara regained consciousness and unsuccessfully tried to place herself between defendant and Elizabeth, but she again became unconscious.

Clara's mother, Frances Montigo, who lived next door with Clara's brother Patrick Montijo, heard the noise from her daughter's home and decided to investigate. As she approached the cottage Kjaerbye was leaving. He told her that he knew nothing of what was happening inside. Frances entered to find defendant on top of the screaming child. When defendant saw Frances, he jumped up and attacked her with a knife he had taken from Clara's kitchen. After cutting her face, defendant threw Frances into a chair, rolled the iron bar against her throat and chest, and stabbed her with a barbecue fork, also taken from the kitchen.

Patrick's wife Dolores, became concerned when Frances did not return from Clara's and decided to investigate. As she arrived at the cottage, the injured Frances was making her escape. Dolores took Frances to a neighbor's house and went back to her own house for Patrick.

Patrick went over to the cottage. As he entered, defendant was standing over Clara with the barbecue fork in his raised hand. Patrick asked defendant what he was doing; defendant did not reply, but lunged at Patrick with the fork. A fight ensued, and defendant stabbed Patrick in the neck and chest. Defendant then ran to his car and drove away.

Elizabeth died from a knife wound that punctured her jugular vein. She also suffered numerous other cuts and bruises. Clara suffered multiple lacerations as well as a fractured jaw and a fractured arm. Frances received several wounds on her face, neck, and hands.

Of defendant's seven contentions on appeal, three are addressed to the validity of the entire trial. The first of these is that defendant was unlawfully prosecuted because the indictment against him was returned by a grand jury that had received a confession obtained from defendant in violation of his constitutional rights.

It is the law that an indictment must be set aside on a timely motion by the defendant if the only evidence of guilt is legally incompetent. (People v. Crosby, 58 Cal.2d 713, 725-726, 25 Cal.Rptr. 847, 375 P.2d 839; Mott v. Superior Court, 226 Cal.App.2d 617, 618, 38 Cal.Rptr. 247.) To be timely, usually such a motion must be made before the defendant enters his plea. (People v. Wester, 237 Cal.App.2d 232, 236, 46 Cal.Rptr. 699.) Section 996 of the Penal Code expressly provides if such a motion is not made, the defendant is thereafter precluded from attacking the sufficiency of the evidence presented to the grand jury. ¹

But section 996 is not absolute in its operation. It has been held, properly, that a defendant may challenge his indictment for the first time on appeal if he was incompetently represented at trial or did not waive his right to counsel. (In re Van Brunt, 242 Cal.App.2d 96, 107, 51 Cal.Rptr. 136; People v. White, 213 Cal.App.2d 171, 176, 28 Cal.Rptr. 656.) Section 996 simply is an application of the general rule that errors cannot generally be ignored at trial and then raised on appeal. (People v. White, supra, 213 Cal.App.2d at p. 175, 28 Cal.Rptr. 656.) The basis of this general rule and the rule announced in section 996 is waiver. (In re Berry, 43 Cal.2d 838, 844, 279 P.2d 18; People v. White, supra, 213 Cal.App.2d at p. 176, 28 Cal.Rptr. 656; People v. Diaz, 206 Cal.App.2d 651, 659, 24 Cal.Rptr. 367.) If the circumstances do not show a waiver, a defendant may challenge the indictment on appeal even though he did not raise the point at trial. (People v. Elliot, 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225; People v. Hellum, 205 Cal.App.2d 150, 154, 22 Cal.Rptr. 724.) Anything said to the contrary in People v. Sigal, 249 Cal.App.2d 299, 305, 57 Cal.Rptr. 541, is disapproved.

The present case falls within the exception permitting an attack on the indictment on appeal. Defendant's confession was rendered inadmissible because of our decision in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. (People v. Sears, supra, 62 Cal.2d 737, 742-743, 44 Cal.Rptr. 330, 401 P.2d 938.) Defendant entered his not guilty plea in 1963 before Dorado was decided. Obviously, before or at the time he entered his plea he could not be expected to challenge the indictment on Dorado grounds. Consequently, his failure to make a 995 motion cannot be regarded as a waiver of his right to attack the indictment.

A grand jury should not, of course, receive incompetent evidence (Pen.Code, § 939.6, subd. (b); People v. Crosby, supra, 58 Cal.2d 713, 725-726, 25 Cal.Rptr. 847, 375 P.2d 839; Mott v. Superior Court, supra, 226 Cal.App.2d 617, 618, 38 Cal.Rptr. 247). But an indictment is not invalidated just because some incompetent evidence is introduced before the grand jury (Pen.Code, § 939.6, subd. (b); People v. Crosby, supra). If the competent evidence would lead a man of ordinary caution to conscientiously entertain a strong and rational suspicion of guilt, the indictment will not be set aside (Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250). This rule applies even if the incompetent evidence is a confession. There is no per se reversible error rule requiring the voiding of indictments.

The burden is on defendant to show error. The grand jury transcript has not been included in the record on appeal, so error does not affirmatively appear. But even if we assume, arguendo, as does the Attorney General, that the confession was erroneously admitted before the grand jury this alone would not require setting aside the indictment. The indictment recites that Patrick Montijo, Dolores Montijo, Robert Kjaerbye and others were among the witnesses called before the jury. In such event we must assume that the confession was not the only evidence presented in support of the indictment, and that proper evidence was introduced.

Defendant's second argument directed at the whole trial is that he was denied due process because the court decided newspaper coverage of the mistrial did not warrant a two-month continuance of the third trial. This claim is not meritorious.

The judge declared a mistrial on October 11, 1966, and set the third trial for the following week. On October 11 and 12 the San Jose Mercury-News ran articles about the mistrial. Before the trial started, defendant moved for a two-month continuance so that he would not be prejudiced by this news coverage. Although the court denied the motion, it stated that anyone who had read the articles or in any way formed an opinion would be excused for cause. Early in the impaneling process the judge asked the jurors in the box if they had read, heard, or seen anything about the mistrial. All replied that they had not. On five further occasions specific prospective...