Opinion
Cr. 1528
8-13-1959
PEOPLE of the State of California, Plaintiff and Appellant, v. William Gerald MOORE, Jr., Defendant and Respondent. *
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Lowell E. Lathrop, Dist. Atty., San Bernardino, for appellant. John C. McCarthy, Pomona, for respondent.
PEOPLE of the State of California, Plaintiff and Appellant,
v.
William Gerald MOORE, Jr., Defendant and Respondent. *
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Lowell E. Lathrop, Dist. Atty., San Bernardino, for appellant.
John C. McCarthy, Pomona, for respondent.
MUSSELL, Justice.
On April 4, 1956, defendant William Gerald Moore, J., was accused in an indictment of the crime of murder (Pen.Code, sec. 187) and it was alleged therein that on March 16, 1956, he did wilfully, unlawfully, feloniously and with malice aforethought, kill and murder one Hulda Hoag, a human being. A jury trial resulted in a verdict finding defendant guilty of the crime of murder in the first degree, a felony, as charged in the indictment, and the verdict was without recommendation that defendant suffer life imprisonment. On September 5, 1956, defendant's motion for a new trial was denied and the court pronounced judgment that the defendant 'be committed to the state prison at San Quentin, California, and there be put to death by administration of lethal gas for the crime of murder in the first degree.'
Following the automatic appeal to the Supreme Court pursuant to the provisions of Penal Code, section 1239(b), the judgment and the order denying the motion for a new trial were affirmed by that court on May 10, 1957 (People v. Moore, 48 Cal.2d 541, 310 P.2d 969). A dissenting opinion was filed therein by Mr. Justice Carter in which he stated that he did not agree that the evidence was sufficient to support the judgment of conviction of first degree murder. Mr. Justice Traynor concurred in this dissent and Mr. Justice Schauer also filed a dissenting opinion in which he stated in his opinion the conviction should be reduced to murder in the second degree. A petition for rehearing was denied on June 4, 1957. Carter, J., Traynor, J., and Schauer, J., were of the opinion that the petition should be granted. Remittitur issued on or about June 10, 1957, and was filed with the clerk of the Superior Court in the county of San Bernardino on June 12, 1957.
In September, 1957, defendant filed in the Supreme Court a petition for a writ of habeas corpus and stay of execution, in which he alleged, among other matters, that the trial court abused its discretion in refusing to modify the verdict of the jury by reducing the offense to murder in the second degree. On December 12, 1958, the Supreme Court issued the following order: 'The petition for a writ of habeas corpus is denied. The remittitur issued on June 10, 1957, in People v. Moore, Crim. 5992, is recalled and the judgment of this court filed May 10, 1957, in that case (48 Cal.2d 541 ) is vacated; the judgment of the trial court and its order denying a motion for new trial are vacated; the cause is remanded to the Superior Court of the State of California in and for the County of San Bernardino with directions to again hear and determine the motion for a new trial or reduction of the degree of the offense and to enter the appropriate judgment or order in accordance with the views set forth in People v. Sheran, 49 Cal.2d 101 ; People v. Borchers, 50 [Cal.2d 321, 325 P.2d 97]; and People v. Robarge, 41 Cal.2d 628 .'
Following this action by the Supreme Court the People filed in that court a petition for order to vacate the order recalling the remittitur and vacating the judgment. In this petition it was contended by the Attorney General that there was no legal basis for the recall of the remittitur and a hearing was requested by the People.
On January 7, 1959, there was filed in the Supreme Court its order, as follows: 'The petition to vacate the order filed December 12, 1958, is denied.' On January 28, 1959, there was filed in the office of the County Clerk of the county of San Bernardino the following order of the Supreme Court, dated January 27, 1959: 'Title of the court and case--The above entitled cause having been heretofore taken under advisement, and all and singular the law and premises having been fully considered, 'It is ordered, adjudged and decreed by the Court that the judgment and order of the Superior Court in and for the County of San Bernardino denying motion for new trial in the above entitled cause, be and the same are hereby vacated; the cause is remanded to the Superior Court of the State of California in and for the County of San Bernardino with directions to again hear and determine the motion for a new trial or reduction of the degree of the offense and to enter the appropriate judgment or order in accordance with the views set forth in People v. Sheran, 49 Cal.2d 101, 315 P.2d 5; People v. Borchers, 50 [Cal.2d 321, 325 P.2d 97]; and People v. Robarge, 41 Cal.2d 628, 262 P.2d 14.'
On March 18, 1959, the time set for hearing after the remand by the Supreme Court, the matter came before the Superior Court of San Bernardino county for hearing and counsel for defendant moved the court for a new trial or reduction of the degree of the offense charged. The trial court then made the following order: 'Under the provisions of Section 1181 Penal Code the Court Orders the Verdict, heretofore finding the defendant guilty of the offense of Murder In The First Degree, a felony, without recommendation dated September 5, 1956, modified to impose upon the defendant, life imprisonment in lieu of death by administration of lethal gas for the crime of Murder In The First Degree, a felony. 'Motion by counsel for the defendant for reduction of the degree of the offense is denied.'
Defendant then waived time for pronouncing of judgment and the court ordered that he be punished by imprisonment in the state prison of the State of California for the rest of his natural life. The People appeal from this order, contending that the exclusive discretion to determine the penalty in first degree murder cases is fixed in the jury when the matter is tried by a jury and that a trial judge may not modify or reduce the punishment to sentence the defendant to life imprisonment in lieu of the death penalty decreed by the finding of the jury. The Attorney General in support of this contention cites Penal Code, section 190, as it read at the time the case was tried and as amended in 1957; Penal Code, section 190.1, added to the code in 1957, and cases such as People v. Green, 47 Cal.2d 209, 235, 302 P.2d 307; People v. Brust, 47 Cal.2d 776, 791-792, 306 P.2d 480; People v. Odle, 37 Cal.2d 52, 57-58, 230 P.2d 345; and People v. Thomas, 37 Cal.2d 74, 77-78, 230 P.2d 351. These cases hold generally that it is the exclusive province of the trier of fact to determine the penalty to be imposed in murder cases. This general rule is subject to possible exceptions, such as where there is error relating to the punishment imposed (People v. Thomas, supra, 37 Cal.2d at page 78, 230 P.2d at page 353). No such error appears in the record herein.
The Attorney General seems to concede that a trial court may under the provisions of Penal Code, section 1181, subdivision 6, grant a new trial or reduce the degree or class of the crime. In the instant case an examination of the judgment and order of the Supreme Court, dated December 12, 1958, clearly shows that the trial court was directed on remand to again hear and determine the motion for a new trial or reduction of the degree of the offense and to enter the appropriate judgment or order in accordance with the views set forth in People v. Sheran, 49 Cal.2d 101, 315 P.2d 5; People v. Borchers, 50 Cal.2d 321, 325 P.2d 97; and People v. Robarge, 41 Cal.2d 628, 262 P.2d 14.
The intention and purpose of the Supreme Court is clearly expressed in its order by the reference therein to the cases last above cited. The Sheran case deals with the reduction by the trial judge of a verdict of second degree murder to manslaughter. The court, in discussing Penal Code, section 1181, subdivision 6, there said (49 Cal.2d at page 109, 315 P.2d at page 10): 'The power given by the statute (Pen.Code § 1181, subd. (6)) to the trial court is to be exercised as that court typically functions. (People v. Thomas, 25 Cal.2d 880, 904, 905, 156 P.2d 7). The section in effect provides that in lieu of granting a new trial, the trial court may reduce the degree or class of the crime if the evidence shows that the defendant is guilty of a lesser degree or of a lesser crime. Inasmuch as the trial court is given both the power to grant a new trial or reduce the degree or class of the crime in the same section, it would appear that the trial court's exercise of the power is the same in both cases.'
In the Borchers case, supra, the court said (50 Cal.2d at page 328, 325 P.2d at page 101): 'In passing on a motion for new trial it is not only the power but also the duty of the trial court to consider the weight of the evidence. (People v. Robarge, 1953, 41 Cal.2d 628, 633, , 262 P.2d 14; People v. Sarazzawski, 1945, 27 Cal.2d 7, 15, 161 P.2d 934.) The power and duty of the trial court in considering the question of the reduction of the class or degree of the crime are the same. (People v. Sheran, 1957, 49 Cal.2d 101, 109, 315 P.2d 5.)'
And on page 330 of 50 Cal.2d, at page 102 of 325 P.2d: 'The trial judge here is to be commended for his diligent alertness to the power and duty, reposed only in trial courts, to reappraise the weight of the evidence on motion for new trial. He very properly showed no hesitance in reducing the class of the homicide in the light of his determination, supported by a reasonable view of the evidence, that there was no sufficient showing of malice aforethought.'
In the Robarge case, supra, it is said that (41 Cal.2d at page 633, 262 P.2d at page 17): 'While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citations.] It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. [Citations.] This does not mean, however, that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.]'
The order and judgment of the trial court herein was limited to the determination of the motion for a new trial or a reduction of the degree of the offense, and the order reducing the punishment for the offense was not in accordance with or authorized by the order of the Supreme Court. The order is clearly a direction to grant or deny the motion for a new trial and if a new trial be denied, to determine by weighing the evidence whether or not a reduction of the degree of the offense should be ordered.
There was an automatic appeal to the Supreme Court herein and there the judgment of the trial court was first affirmed and later set aside. A petition for a writ of habeas corpus was denied, the remittitur was recalled and the judgment of the Supreme Court vacated. The petition of the Attorney General for an order vacating the order recalling the remittitur and vacating the judgment was considered by the Supreme Court and denied. Under these circumstances it is not our function or within our power to question the proceeding before the Supreme Court and, since the reduction of the punishment herein was not in accord with the direction of the Supreme Court, the judgment and order appealed from are reversed. The request to augment the record and the motion to dismiss the appeal herein are denied.
GRIFFIN, P. J., and SHEPARD, J., concur. --------------- * Opinion vacated 2 Cal.Rptr. 6, 348 P.2d 584.