Pike, In re

• Decision Date: 14 March 1967
• Docket Number: Cr. 9542
• Citation: 424 P.2d 724,57 Cal.Rptr. 172,66 Cal.2d 170
• Court: California Supreme Court
• Parties: , 424 P.2d 724 In re Charley Luther PIKE on Habeas Corpus. In Bank

Page 172

57 Cal.Rptr. 172

66 Cal.2d 170, 424 P.2d 724

In re Charley Luther PIKE on Habeas Corpus.

Cr. 9542.

Supreme Court of California,

In Bank.

March 14, 1967.

Henry A. Dietz, Santa Clara, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien and Robert R. Granucci, Deputy Attys. Gen., for respondent.

TOBRINER, Associate Justice.

Petitioner is under sentence of death for murder. On automatic appeal pursuant to Penal Code section 1239, subdivision (b), this court affirmed the judgment both as to guilt and penalty. (People v. Pike (1962) 58 Cal.2d 70, 22 Cal.Rptr. 664, 372 P.2d 656.) We denied a rehearing on July 27, 1962. The United States Supreme Court denied certiorari on December 17, 1962 (371 U.S. 941, 83 S.Ct. 324, 9 L.Ed.2d 277).

Petitioner urges that the judgment, insofar as it fixes the penalty at death, cannot stand in light of the decision of this court in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33. As petitioner points out, the record discloses that the trial court instructed the jury that a defendant serving a life sentence could be paroled after he had served seven years and that he could be pardoned or obtain a reduction of his sentence by the Governor. ¹

We held in Morse that such instructions may convert the jury's statutory duty of deciding between life imprisonment and death into choosing between a specified number of years of incarceration and death. The vice, indeed, strikes deeper, because, as we explained in Morse, the reference to years of imprisonment invites the jury into an abortive speculation as to the possible duration of the imprisonment. In turn, this preoccupation of the jury may lead it to attempt to predetermine and to prejudge the action of the Adult Authority, whose duty it is to fix the defendant's term in light of his subsequent and realistic rehabilitation, if such rehabilitation occurs.

In this case the adulteration of the jury's function became more pronounced because the judge told the jury that, in substance, the ultimate decision as to the penalty rested with the Governor. Hence, instead of assuming full responsibility for the stern and awesome duty of deciding between life and death, the jury labored under the instruction that a death penalty was subject to further limitation by the executive power.

The error was underscored here not only by an extensive argument of the prosecution as to the possibility of parole and as to the conduct of the Adult Authority ² but by the prosecution's insistence, in the examination of the veniremen, that they 'take into consideration that provision of the law which says a person who gets life imprisonment is eligible for parole at the end of seven calendar years.' ³

We cannot doubt that such error caused prejudice. Indeed, we have held that any such error is 'substantial (and) * * * must be deemed to have been prejudicial, and is reversible per se.' (In re Gaines (1965) 63 Cal.2d 234, 236, 45 Cal.Rptr. 865, 866, 404 P.2d 473, 474; People v. Hines (1964) 61 Cal.2d 164, 169--170, 37 Cal.Rptr. 622, 390 P.2d 398. We have also held that such error may be urged in collateral attack upon judgments which were final prior to the decision in Morse. (In re Gaines, supra, 63 Cal.2d at p. 236, 45 Cal.Rptr. 865, 404 P.2d 473; In re Jackson (1964) 61 Cal.2d 500, 505--508, 39 Cal.Rptr. 220, 393 P.2d 420.) Accordingly, we have no alternative but to vacate the judgment as to the death penalty.

Petitioner challenges the validity of the judgment of guilt on the ground that the police took statements from him during the four days which followed his arrest, while ignoring his repeated requests for an opportunity to consult with counsel. He urges that, in light of these circumstances, the decisions in Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, and Miranda v. State of Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 compel reversal of the judgment of guilt.

Petitioner concedes, however, that no statements elicited from him during this period were introduced at trial; nor does he allege that the taking of these statements impelled him to make his testimonial confession at trial or otherwise aided the prosecution in mounting its case. (See People v. Spencer (1967), Cal. 57 Cal.Rptr. 163, 424 P.2d 715; People v. Polk (1965) 63 Cal.2d 443, 448, 47 Cal.Rptr. 1, 406 P.2d 641; People v. Davis (1965) 62 Cal.2d 791, 796, 44 Cal.Rptr. 454, 402 P.2d 142) Accordingly, the decisions in Escobedo, Dorado, and Miranda do not control. ⁴ In view of this holding we need not consider other possible answers to petitioner's contention.

The writ is granted as to the penalty trial of petitioner. The remittitur issued in Crim. 7039, People v. Pike (1962) 58 Cal.2d 70, 22 Cal.Rptr. 664, 372 P.2d 656, is recalled and the judgment imposing the death penalty is reversed insofar as it relates to the penalty. In all other respects the judgment is affirmed. Petitioner is remanded to the custody of the Superior Court of Los Angeles county for a new penalty trial.

TRAYNOR, C.J., PETERS and SULLIVAN, JJ., and ROTH, ^* J. pro tem., concur.

BURKE, Justice (concurring and dissenting).

I dissent from the reversal of the judgment imposing the death penalty. From my examination of the entire cause (as mandated by section 13 of article VI of the California Constitution) I am not of the opinion that it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the errors set forth in the majority opinion. (See People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, and the dissents in People v. Luker, 63 Cal.2d 464, 479, 47 Cal.Rptr. 209, 407 P.2d 9; In re Spencer, 63 Cal.2d 400, 414, 46 Cal.Rptr. 753, 406 P.2d 33; In re Gaines, 63 Cal.2d 234, 240, 45 Cal.Rptr. 865, 404 P.2d 473; People v. Hillery, 62 Cal.2d 692, 714, 44 Cal.Rptr. 30, 401 P.2d 382; In re Lessard, 62 Cal.2d 497, 513, 42 Cal.Rptr. 583, 399 P.2d 39; and People v. Terry, 57 Cal.2d 538, 569, 572, 21 Cal.Rptr. 185, 370 P.2d 985.) In all other respects I concur in the opinion of the majority.

McCOMB, J., concurs.

1 The court instructed the jury: 'In making your determination as to the penalty to be imposed, you may consider that the laws of California provide that a prisoner sentenced to either death or life imprisonment may be pardoned or may have his sentence reduced by the Governor. A prisoner serving a life sentence may be paroled, but not until he has served at least seven years.'

2 In argument to the jury at the penalty phase, the prosecutor stated: 'When you were * * * questioned as jurors, I did call to your attention the fact that you have the right to take into consideration the matter of life imprisonment in determining which of the two penalties to select, that you could take into consideration the fact that under the laws of the State of California, that a person who is given life imprisonment is eligible for parole after serving seven calendar years. * * * A lot of people think unless we bring this to the attention of the juries either by argument or instructions, that when a person * * * is sentenced to life imprisonment for murder, that they serve the rest of their lives in prison. But they don't.

'We have in this state what we call an indeterminate sentence law. It is administered under our codes and by what we call the Adult Authority. * * * The Adult Authority is a group of men...