Opinion
Page __
For Opinion on Rehearing see 84 Cal.Rptr. 711, 465 P.2d 847.
McComb, J., dissented in part.
[74 Cal.Rptr. 874] [ 450 P.2d 250] 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 [74 Cal.Rptr. 875] [ 450 P.2d 251] 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 [74 Cal.Rptr. 876] [ 450 P.2d 252] 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.
Section 996 uses the language "objections mentioned in the last section." This obviously refers to section 995, not the subsequently enacted section 995a. (People v. Middleton, 103 Cal.App. 135, 137-138, 283 P. 976.)
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 [74 Cal.Rptr. 877] [ 450 P.2d 253] 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 jurors were asked the same or a similar question, and all jurors were told to consider the questions which had been asked of previous prospective jurors. No juror who heard the case could remember any pretrial publicity concerning the mistrial.
Thus, each juror was, in effect, asked whether he had read, heard, or seen any news about the mistrial. (People v. Tahl, 65 Cal.2d 719, 730-731, 56 Cal.Rptr. 318, 423 P.2d 246) and each said that he or she had not. Their statements must be believed. (Cf. People v. Lambright, 61 Cal.2d 482, 486-487, 39 Cal.Rptr. 209, 393 P.2d 409.) The jurors' ignorance of the pretrial publicity is a very strong indication that defendant was not tried by a biased jury. (People v. Tahl, supra, 65 Cal.2d 719, 731, 56 Cal.Rptr. 318, 423 P.2d 246, People v. Jacobson, 63 Cal.2d 319, 325, 46 Cal.Rptr. 515, 405 P.2d 555; compare Sheppard v. Maxwell, 384 U.S. 333, 354, fn. 9, 86 S.Ct. 1507, 16 L.Ed.2d 600.) Especially is that so where, as here, the paper carrying the pretrial publicity was of limited circulation, and the jury was drawn from a county with a large population.
"Due process requires that the accused receive a trial by an impartial jury free from outside influences. * * * [W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity." (Sheppard v. Maxwell, supra, 384 U.S. 333, 362-363, 86 S.Ct. 1507, 1522.) In this case there was no reasonable likelihood that pretrial news would prevent a fair trial, and the court was under no duty to continue the case.
The third alleged ground for the invalidity of the entire trial is that the court should have declared a mistrial or removed juror Baker instead of ordering juror Baker not to tell her fellow jurors why juror Jacobsma had been excused. Defendant claims that the court's order deprived juror Baker of freedom to deliberate.
Juror Jacobsma became upset upon learning that a close friend had been bludgeoned to death. With defendant's consent, the court excused Mrs. Jacobsma. Mrs. Jacobsma then advised the court that she had communicated her distress to juror Baker. Mrs. Baker was called into chambers and questioned by the court. She stated that her knowledge of Mrs. Jacobsma's affairs would have no effect upon her ability to act fairly. Mrs. Baker also said that she had not told any of the other jurors why Mrs. Jacobsma had left the panel. The court admonished her to keep her silence on this issue, and an alternate juror was chosen to replace Mrs. Jacobsma. Defendant moved for a mistrial, and the court denied the motion.
The court acted properly. A juror may not be excused during the trial if that juror [74 Cal.Rptr. 878] [ 450 P.2d 254] is capable of fairly performing his duties. (People v. Hamilton, 60 Cal.2d 105, 124-128, 32 Cal.Rptr. 4, 383 P.2d 412.) Mrs. Baker said she could act fairly, and she must be believed in the absence of evidence to the contrary. (Cf. People v. Lambright, supra, 61 Cal.2d 482, 486-487, 39 Cal.Rptr. 209, 393 P.2d 409.) She was not deprived of freedom to deliberate. The jury's function is to consider the defendant's guilt, and the reason for excusing Mrs. Jacobsma was not relevant to that determination.
Three other errors asserted by defendant relate only to the murder conviction. First, defendant claims that the prosecutor committed prejudicial error by saying in his closing argument, "A second degree verdict is a complete defense victory in this case."
The prosecutor's remark was probably improper. A trial is not a game. Lawyers may speak colloquially of winning and losing cases, but the prosecutor's job is to see that justice is done, not to emerge victorious. (People v. Talle, 111 Cal.App.2d 650, 677-678, 245 P.2d 633.) However, defendant is barred from raising the error in this court, because he did not object to the prosecutor's remark when it was made. An admonition would have been effective. (People v. Perez, 58 Cal.2d 229, 247, 23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946.)
The remark did not preclude the issue of second degree murder going to the jury. The jury was fully instructed on that doctrine, so it could hardly have believed that a second degree murder verdict would have been improper.
Defendant reads the remark as meaning that "any victory to a killer would be a travesty. * * * " This is a strained reading of the prosecutor's words. The prosecutor had just said that premeditation was not the only basis for a first degree verdict. He probably intended the remark to suggest that the jury would have to reject felony murder as well as premeditation to reach a verdict of second degree. In any event the remark could not have contributed materially to the verdict. Moreover, as already pointed out, any improper implications could have been cured by an admonition.
Second, defendant contends that the court should not have given instructions on felony murder and burglary, because defendant could not have burglarized the cottage, which he assertedly had a right to enter, and burglary was the only basis for a felony-murder instruction. If defendant entered the cottage with the intent to commit a felony, he would be guilty of burglary even if he had a right to enter the cottage for a lawful purpose. This was decided on the prior appeal. (People v. Sears, supra, 62 Cal.2d 737, 746, 44 Cal.Rptr. 330, 401 P.2d 938.)
Third, defendant complains of the court's failure to give the following instruction:
"In determining whether in regard to premeditation and deliberation reasonable doubt exists, as that term has been previously defined, you may consider any of the following evidence:
1. The lack of motive;
2. The defendant's prior relationship with the child;
3. The defendant's prior consumption of alcoholic beverage;
4. The presence of the defendant at King's Tavern immediately prior to his going to the scene;
5. The defendant's parking of his vehicle in sight on Merriman Avenue prior to entry of the cottage;
6. Any other evidence tending to prove reasonable doubt."
The instruction should have been given. "Section 1096a of the Penal Code declares that when the statutory definition of reasonable doubt is given (see Pen.Code, § 1096), no other instruction need be given defining reasonable doubt. Despite this section, a defendant, upon proper request therefor, has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered." (People v. Granados, 49 Cal.2d [450 P.2d 255] [74 Cal.Rptr. 879] 490, 496, 319 P.2d 346, 350.) This right is not limited to felony-murder cases, such as Granados and People v. Whitehorn, 60 Cal.2d 256, 264, 32 Cal.Rptr. 199, 383 P.2d 783, where the defendant is demanding an instruction that the underlying felony must be proved beyond a reasonable doubt. A defendant is entitled to an instruction relating particular facts to any legal issue. (People v. Kane, 27 Cal.2d 693, 699-702, 166 P.2d 285; People v. Cook, 148 Cal. 334, 346-347, 83 P. 43; People v. Eckert, 19 Cal. 603, 604, 605; People v. Mayo, 194 Cal.App.2d 527, 536-537, 15 Cal.Rptr. 366; People v. Plywood Mfrs. of Cal., 137 Cal.App.2d Supp. 859, 872-875, 291 P.2d 587; People v. Cohn, 94 Cal.App.2d 630, 638, 211 P.2d 375; People v. Wilson, 100 Cal.App. 428, 431-432, 280 P. 169.)
Defendant's proposed instruction was not phrased as eloquently as it might have been. The word "possible" should have preceded the phrase "lack of motive." But those defects did not justify rejection of the requested instruction, for it was fundamentally a correct statement of the law's application to the facts on the issue of premeditation and deliberation. (People v. Kane, supra, 27 Cal.2d 693, 699, 166 P.2d 285; People v. Mayo, supra, 194 Cal.App.2d 527, 537, 15 Cal.Rptr. 366; People v. Mock Ming Fat, 82 Cal.App. 618, 622, 256 P. 270.)
But the failure to give this instruction could hardly have been prejudicial. It is true that the case for premeditated murder, while very strong, was not conclusive. Defendant denied making the threat to kill his wife and family four days before the murder. He denied the crowbar had been concealed under his shirt, contending it was sticking out of his pants pocket and plainly visible, that he intended to use it only to induce his wife to listen, and that he had no intent to hit anyone. He made no attempt to hide his presence at the cottage. The court did instruct the jury that defendant could not be found guilty of deliberate premeditated murder if it had a reasonable doubt as to whether intoxication had so diminished defendant's mental capacity that he could not deliberate or premeditate. The court also instructed the jury that lack of motive was a circumstance to consider in determining guilt. And defendant's counsel argued eloquently that the other factors listed in the instruction indicated a lack of premeditation and deliberation.
Thus, the failure to give the instruction could not have affected the verdict.
Defendant's final contention relates solely to the validity of the death penalty which the jury imposed upon him for the first degree murder. He claims that the jury which fixed this sentence was the sort of "hanging jury" condemned in Witherspoon v. Illinois, 391 U.S. 510, 522-523, 88 S.Ct. 1770, 20 L.Ed.2d 776, and that therefore the sentence must be set aside and the issue of penalty retried.
In Witherspoon v. Illinois, supra, the United States Supreme Court held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction" (391 U.S. at p. 522, 88 S.Ct. at p. 1777) because to do so would "deprive [the defendant] of his life without due process of law" (id. at p. 523, 88 S.Ct. at p. 1778). In dictum the court made clear that nothing in its holding "bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear * * * that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, * * *." (Id. at p. 522, 88 S.Ct. at p. 1777, fn. 21.) The court added that "Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment * * * it simply cannot be assumed that this is his [74 Cal.Rptr. 880] [ 450 P.2d 256] position." (Id. at p. 516, 88 S.Ct. at p. 1774, fn. 9, italics added.)
In the instant case six prospective jurors were excused for cause solely on the basis of their own expressions of opinion that it would be either "difficult" or "unfair" for them to serve on the jury because they were "against" capital punishment, did not "believe" in it, or felt it was "not warranted."
One of the jurors was asked "Is there anything about the nature of the case that would make it difficult or impossible for you to serve as an impartial juror?" (Italics added.) The juror's reply was "Yes, Your Honor, I think because of the nature of the case and my own personal feeling about capital punishment, I'd like to be excused."
None of these jurors stated "unambiguously that he would automatically vote against the imposition of capital punishment * * * [regardless of] what the trial might reveal, * * *." First, under Witherspoon it cannot be assumed that a person who merely states he is "against" capital punishment, does not "believe" in it, or feels it is "not warranted" would never, as a juror, vote to impose it or even consider doing so. (Witherspoon v. Illinois, supra, 391 U.S. 510, 515-516, 88 S.Ct. 1770, 1774, fn. 9.)
Second, the questions asked of the six excluded jurors did not even deal with their willingness to consider the evidence before automatically committing themselves to vote against the death penalty. The typical question--"Is there anything about the nature of this case that would make it unfair [or "difficult"] for you to serve as a juror?"--merely asked the juror to state his own opinion regarding not only his excludability but his witness to serve as a juror. We are left entirely to speculation in seeking to determine why each juror felt his opposition to the death penalty would make it unfair or difficult for him to serve as a juror. In each case it may have been because the juror was irrevocably committed to voting against the death penalty regardless of the evidence; but the crucial point is that the juror may not have been thus committed and may have relied instead on any number of other reasons. Therefore, the jurors' statements, ambiguous in and of themselves for Witherspoon[74 Cal.Rptr. 881] [ 450 P.2d 257] purposes, were rendered even more ambiguous by the nature of the questions asked.
The range of speculation is not narrowed appreciably even if we assume that all the excluded jurors attempted to evaluate their suitability for jury service in light of the trial judge's earlier intimation that certain jurors might be excluded or permitted voluntarily to avoid jury service because of their reservations concerning capital punishment.
We reject two contentions made by the Attorney General, contentions which we also rejected in In re Anderson and Saterfield, 69 A.C. 638, 643-645, 73 Cal.Rptr. 21, 447 P.2d 117. The first is that defense counsel's failure to object to the exclusion for cause of the veniremen who expressed reservations concerning the death penalty bars him from raising the claim of improper exclusion on appeal. As we pointed out in our Anderson and Saterfield decision, Witherspoon effected a material change in the law of this state regarding exclusion of jurors because of their reservations concerning the death penalty. Therefore, where, as in the instant case, the defendant was tried before Witherspoon, his counsel's failure to object at trial to the exclusion of jurors does not bar him from claiming error on appeal. (Cf. People v. Kitchens, 46 Cal.2d 260, 262-263, 294 P.2d 17.)
The second contention by the Attorney General is that the exclusion of the jurors with reservations concerning capital punishment was, if erroneous, harmless since the prosecutor had unexercised peremptory challenges which he could have used to remove these jurors even if the court had refused to excuse them for cause. As we replied to this argument in Anderson and Saterfield, "According to our understanding of Witherspoon, reversal is automatically required if a venireman was improperly excused for cause on the basis of his opposition to the death penalty." (69 A.C. at p. 645, 73 Cal.Rptr. at p. 26, 447 P.2d at p. 122.) We further stated that we will not indulge in speculation that the prosecutor would have exercised his peremptory challenges to produce the sort of unrepresentative "hanging jury" that Witherspoon condemns. We cannot assume that a prosecutor would abuse the high responsibilities of his office by employing peremptory challenges to accomplish an otherwise constitutionally impermissible result, the impaneling of a jury "uncommonly willing to condemn a man to die." (Id. at p. 521, 88 S.Ct. at p. 1776.)
Cf. Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759: "The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury * * *."
A prosecuting attorney is not the representative of an ordinary party to a controversy; rather, he is the agent of a sovereignty whose paramount interest is not in "winning" but in seeing that justice is done. (People v. Talle, supra, 111 Cal.App.2d 650, 677, 245 P.2d 633.) "A district attorney is charged with the public duty of seeing that the defendant has a fair trial." (People v. Anthony, 185 Cal. 152, 158, 196 P. 47, 50.) Thus, prosecuting attorneys have the duty of assuring a fair penalty trial to defendants in capital cases.
[74 Cal.Rptr. 882] [ 450 P.2d 258] The judgment is reversed insofar as it relates to penalty. In all other respects the judgment is affirmed.
TRAYNOR, C.J., and TOBRINER, BURKE, SULLIVAN, and SCHAUER, JJ., concur.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
McCOMB, Justice (dissenting in part).
I would affirm the judgment in its entirety.
Rehearing granted; SCHAUER, J., sat in place of MOSK, J., who deemed himself disqualified.
In addressing the entire jury panel at the outset of voir dire, the judge stated: "I will ask now generally if there are any of you presently seated in the jury box that are opposed to the imposition of the death penalty, if under the evidence, it would appear in the exercise of your discretion that it would be a proper judgment.
"Any of you have any conscientious scruples or views which would preclude you in what would be termed to be a proper case * * * from voting for the death penalty?" (The "Prospective Jurors," apparently just those then in the jury box, stated "No.")
It should be noted, first, that the judge did not specify what would happen to a juror who responded affirmatively; second, that the judge did not articulate the criterion for juror exclusion established in Witherspoon (an understandable but not harmless failure since Witherspoon had not yet been decided); and, third, that the judge used the highly ambiguous phrase "proper case" without clearly explaining that each individual juror is to determine what may be a "proper" case for imposing the death penalty without any guidance from the Legislature or the court. The judge's phrase "if under the evidence, it would appear in the exercise of your discretion that it would be a proper judgment" does not adequately specify that the individual juror has uncontrolled discretion to determine what may be a "proper case" for imposition of the death penalty. Since the jurors' usual function is to find facts from the evidence adduced at trial, the jurors might well have construed the above phrase to mean that the jury was to exercise its discretion in determining if the facts were such as to make the case a "proper" one, as defined by court or Legislature, for imposition of the death penalty.
Witherspoon v. Illinois, supra, 391 U.S. 510, 88 S.Ct. 1770, holds that in a state like California where the death penalty is an optional form of punishment which the jury is free to select or reject as it sees fit the capital jury "must do nothing less--than express the conscience of the community on the ultimate question of life or death." (Id., 391 U.S. at p. 519, 88 S.Ct. at p. 1775, italics added.) It further holds that when the state excludes from a jury "all who would be reluctant to pronounce the extreme penalty"--thereby producing a jury which "can speak only for a distinct and dwindling minority" of the community (id. at p. 520, 88 S.Ct. at p. 1776), and is "uncommonly willing to condemn a man to die" (id. at p. 521, 88 S.Ct. at p. 1776)--it denies a fair trial on the issue of penalty to any defendant sentenced to death by that jury. Therefore, a prosecutor who uses peremptory challenges for the purpose of producing such a jury is violating his obligation to assure the defendant a fair trial.
In Swain v. Alabama, supra, 380 U.S. 202, 85 S.Ct. 824, the court held that "it is permissible [for a state] to insulate from inquiry the [prosecutor's] removal [by peremptory challenge] of [all] Negroes from a particular jury" only because it can be assumed "that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged." (Id., 380 U.S. at p. 223, 85 S.Ct. at p. 837.) This assumption can be made because the prosecutor is entitled to exercise peremptory challenges on the basis of a belief that in a specific case members of a particular group--racial, religious, national, or other--are more likely to be biased than members of some other group. (Id., 380 U.S. at pp. 220-221, 85 S.Ct. 824.) However, in light of the Witherspoon definition of a capital jury which is "impartial" on the issue of imposing the death penalty it cannot be assumed that a prosecutor who uses peremptory challenges to remove all jurors who have reservations concerning
the death penalty is acting on the basis of "acceptable considerations."