People v. Terry

• Decision Date: 20 March 1964
• Citation: 37 Cal.Rptr. 605,61 Cal.2d 137,390 P.2d 381
• Court: California Supreme Court
• Parties: , 390 P.2d 381 The PEOPLE, Plaintiff and Respondent, v. Doyle Alva TERRY, Defendant and Appellant. Crim. 7340.

Page 605

37 Cal.Rptr. 605

61 Cal.2d 137, 390 P.2d 381

The PEOPLE, Plaintiff and Respondent, v. Doyle Alva TERRY, Defendant and Appellant.

Crim. 7340.

Supreme Court of California, In Bank.

March 20, 1964.

Rehearing Denied April 15, 1964.

Ernest L. Graves, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

This case involves an automatic appeal from a death penalty. Charged with one count of conspiracy to commit robbery, five counts of robbery and one count of first degree murder, defendant, after a jury trial, was found guilty of all those offenses. The jury rendered a verdict for the death penalty on the murder count. On appeal (People v. Terry (1962) 57 Cal.2d 538, 21 Cal.Rptr. 185, 370 P.2d 985) this court affirmed the judgment excepting the determination of the penalty on the murder count. Upon retrial of that issue the jury again returned a verdict for the death penalty; the court entered judgment accordingly.

At the retrial of the penalty issue the prosecution developed the theory that defendant operated as the leader of an armed gang which had committed several robberies of bank messengers in the Los Angeles area, and that the murder of Owings, a police officer, occurred when the defendant and Ross Wilson, defendant's accomplice in the robberies, attempted to abandon an automobile which they had used in several of such offenses. At the time of the killing defendant had been released on bail pending the appellate determination of his conviction for violations of Penal Code sections 288 and 286. The police also wanted him on a warrant charging him with child molestation, possession of marijuana and furnishing marijuana to a minor. The prosecution contended that, fearing that the officer would learn of the warrant for his arrest and that his presence near the automobile would connect him with the robberies, defendant killed the officer in cold blood.

Proceeding at the retrial in propria persona, defendant offered evidence to show that he was not at the scene of the various armed robberies and that he was innocent of the charges. He also attempted to establish that when the killing occurred he had the gun wrapped up in a sweater in his hands; that the officer approached and demanded to know what was in the sweater; that when defendant's answer failed to satisfy the officer, he lunged at defendant, precipitating as a reflex action defendant's discharge of the gun. For reasons which we shall hereinafter discuss, defendant was unable to place the evidence to this effect before the jury.

The case raises another aspect of the almost insoluble difficulty of defining the purpose, function and content of the penalty trial in capital cases. We have previously pointed out that the Legislature fixed no standards for the guidance of the jury in determining whether a defendant should suffer the penalty of life imprisonment or death, and to that extent left the function of the jury in a somewhat nebulous state. (People v. Morse, 60 A.C. 613, 36 Cal.Rptr. 201, 388 P.2d 33.) We now face the further fact that the Legislature did not clearly define the scope of the penalty trial; we must determine what kind of evidence is admissible at such a trial and fix the limits, if any, of this legislatively uncharted enquiry.

The jury's obligation of deciding between life imprisonment and death should not be aggravated by an undue expansion or contraction of the subject matters to be heard or considered at the penalty trial. We disapproved of instructions, evidence and argument in People v. Morse, supra, 60 A.C. 613, 36 Cal.Rptr. 201, 388 P.2d 33, that directed the jury's deliberations into the misleading matters of the future action of the Adult Authority and the possible reduction of the sentence by the Governor and the trial judge, and we shall point out that comparable errors occurred here.

We shall explain further that an undue constriction of the subject matter and of the evidence admissible in the guilt phase which occurred here is as disastrous as was the undue extension of the matters presented to the jury in Morse. The jury should have before it not only the prosecution's unilateral account of the offense but the defense version as well; the jury should be afforded the opportunity to see the whole picture, yet that comprehensive consideration was denied here.

A. Instructions and argument on post-sentencing procedures.

The instructions and argument in the instant case effected the same errors which we condemned in People v. Morse, supra, 60 A.C. 613, 36 Cal.Rptr. 201, 388 P.2d 33. They diverted the jury's attention from its own task of decision to the roles of the Governor, the Legislature and the Adult Authority, as well as to possibilities of reduction of the sentence by their action.

The court instructed the jury 'that a person in the defendant's position if sentenced to death may have that sentence commuted by the Governor but only with the approval of the majority of the State Supreme Court.' As we pointed out in Morse, such an instruction erroneously '(diminished) the jury's sense of obligation.'

The court further instructed 'that the Legislature of the State of California has the power to change the law in the future in such a way that this defendant's sentence could be lessened but in no event could the Legislature at any time in the future increase the punishment which you impose.' In depicting the contingency of legislative reduction of the sentence of life imprisonment the court went beyond the Morse instruction and deepened the error.

We said in Morse 'The jury should not be invited to decide if the defendant will be fit for release in the future; it should not at all be involved in the issue of the time, if any, when the defendant should be released; it should not be propelled into weighing the possible consequences of the Authority's administrative action.' (60 A.C. 625, 36 Cal.Rptr. 208, 388 P.2d 40.) The court instructed here 'It is also the law of the state that a person under a sentence of life imprisonment may be paroled, but not until he has served at least seven years.' The instruction pointed out that 'the paroling authority must consider all statements and recommendations which may have been submitted by the judge, district attorney, and sheriff' but 'is not bound by such statements or recommendations.' In this regard the instructions more elaborately describe the procedure of the Adult Authority than those in Morse.

Finally, in the instant case, the prosecution in its argument to the jury emphaized the factor of prole: defendant 'has got the possibility of parole.' The prosecution further emphasized in argument the alleged danger of permitting the Adult Authority to determine defendant's parole upon the ground that if defendant could have 'fooled' the psychiatrists at Atascadero into finding that he was not a sexual psychopath, he could similarly 'fool' the Adult Authority.

The evils effected by the errors of Morse occurred here.

B. Evidence admissible at penalty trial.

The history of Penal Code section 190.1 serves at least as one indicia of the type of evidence admissible at the penalty trial. Prior to the enactment of the section in 1957, the jury, in a possible death penalty case, returned a single verdict as to guilt and the penalty. But the anomaly of this amalgamated verdict was graphically described by Justice Schauer in People v. Friend (1957) 47 Cal.2d 749, 763, 306 P.2d 463, 471 who contrasted the Adult Authority's complete study of the defendant's background and of the aggravating and mitigating circumstances in noncapital cases with the absence of such study in capital cases.

Justice Schauer said: '* * * In tailoring punishment for most offenders the controlling agency has the benefit of a complete study of the person. In the whole life story the particular crime is an incident, a controlling one for the time being, probably, but only one of many which the board considers in reaching its ultimate conclusion. It seems, therefore, incongruous that in a case of first degree murder the jury conceivably may be given the responsibility of selecting life imprisonment or death as punishment, but in making that determination may be denied the full measure of enlightenment which for less drastic punishments is available to the administrative board. * * *'

To meet this justifiable criticism the Legislature established a separate procedure to resolve the issue of penalty, enacting section 190.1 to the effect that 'Evidence may be presented at the further proceedings in the issue of penalty, of the circumstances surrounding the crime, of the defendant's background and history, and of any facts in aggravation or mitigation of the penalty. * * *'

In view of the origin and design of the section, this court, as we shall show, has recognized its broad but not unbounded area of operation. In People v. Love (1960) 53 Cal.2d 843, 856, 3 Cal.Rptr. 665, 672, 350 P.2d 705, 712 we said: 'Since the jury has complete discretion to choose between the alternative penalties in the light of the objectives of criminal law (citations) the permissible range of inquiry on the issue of penalty is necessarily broad.' We have applied 'broad, liberal rule(s) on admission of evidence that has always existed where a defendant has pleaded guilty and the only issues being tried relate to the degree of the crime and the penalty to be imposed.' (People v. Jones (1959) 52 Cal.2d 636, 647, 343 P.2d 577, 584.)

We have permitted in the penalty trial a showing of the defendant's commission of criminal acts similar, or related, to the crime for which he is being tried. ¹ We have likewise sanctioned the introduction of testimony of criminal acts not necessarily related to the crime for which defendant was being tried. ² ...