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District Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Conser Lee SHAW, Defendant and Appellant.

Cr. 4703.

Decided: August 09, 1965

Gerald Z. Marer, San Francisco, for appellant (under appointment of the District Court of Appeal). Thomas C. Lynch, Atty. Gen., Robert R. Granucci, John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

Defendant appeals from the judgment of the trial court sentencing him to state prison for the term prescribed by law for forcible rape in violation of paragraph 3 of section 261 of the Penal Code. The defendant was convicted of this offense and of robbery in the second degree in violation of section 211 of the Penal Code following trial by jury, but the latter conviction was set aside on motion of the district attorney on the grounds that further proceedings on that charge would subject the defendant to double punishment. On his arraignment on an amended information the defendant, in addition to entering a plea of not guilty to each of the foregoing charges, had admitted allegations which charged that he had a prior conviction of robbery in 1957 and a prior conviction of kidnapping in 1959, and that he had served a term of imprisonment for each in the state prison.

Defendant attacks the ruling of the trial court in limiting him to ten peremptory challenges, its rulings on the admission of evidence, the manner in which it instructed the jury, and asserts alleged prejudicial misconduct on the part of the prosecutor.

In view of the conclusion on the issue of the number of peremptory challenges which requires a reversal, it is unnecessary to detail the facts surrounding the sordid occurrence giving rise to this case. Such facts as are material to the questions raised will be hereinafter set forth.

The Alleged Error in Disallowing More Than Ten Peremptory Challenges.

After the defendant had exercised nine peremptory challenges and had examined a juror seated to replace one who had been excused by the court for cause, and after the People had expressed satisfaction with the jury as constituted, the court stated: ‘What says the Defendant? This is your last challenge Mr. Larson.’ The defendant excused the juror, and thereupon a new juror was sworn and examined by both sides. When the People expressed satisfaction with the jury, the court ordered the clerk to swear the jurors to try the case. The defendant then sought to exercise a further peremptory challenge to a juror who had been seated following the exercise of his ninth challenge.1

Defendant claims he was deprived of his rights under section 1070 of the Penal Code which provides: ‘If the offense charged be punishable with death, or with imprisonment in the state prison for life, the defendant is entitled to twenty and the state to twenty peremptory challenges. On a trial for any other offense, the defendant is entitled to ten and the state to ten peremptory challenges.’ The failure to grant a defendant the prescribed number of peremptory challenges when the record reflects his desire to excuse a juror before whom he was tried is reversible error. (People v. Diaz (1951) 105 Cal.App.2d 690, 695, 234 P.2d 330, hearing in S.Ct. den. Aug. 23, 1951; People v. O'Connor (1927) 81 Cal.App. 506, 519–521, 254 P. 630; People v. O'Neil (1882) 61 Cal. 435, 436; People v. Harris (1882) 61 Cal. 136, 137; cf. People v. Bugg (1947) 79 Cal.App.2d 174, 176, 179 P.2d 346; People v. Aguinaldo (1934) 3 Cal.App.2d 254, 260, 39 P.2d 505; and People v. Carter (1961) 56 Cal.2d 549, 573–574, 15 Cal.Rptr. 645, 364 P.2d 477, and note 3 U.C.L.A.L.Rev. 384–387; and see Swain v. State of Alabama (1965) 380 U.S. 202, 211–212, 85 S.Ct. 824, 13 L.Ed.2d 759, 766–774 for the historical background of the peremptory challenge.)

He first points out that under the charge of forcible rape he was punishable by, and in fact was sentenced to imprisonment in the state prison for a term of not less than three years (Pen.Code § 264), which under the provisions of section 671 of the Penal Code subjected and subjects him to a maximum term of imprisonment in the state prison for life. (People v. Bales (1961) 189 Cal.App.2d 694, 705, 11 Cal.Rptr. 639 (double punishment, rape including incest); see also People v. Harmon (1960) 54 Cal.2d 9, 16–17, 4 Cal.Rptr. 161, 351 P.2d 329 (construction of Pen.Code, § 4500); In re Larsen (1955) 44 Cal.2d 642, 647–648, 283 P.2d 1043 (upholding constitutionality of the indeterminate sentence law); and People v. Collins (1963) 220 Cal.App.2d 563, 580–581, 33 Cal.Rptr. 638 (multiple punishment, burglary including three other offenses incident to the same objective).) He also alleges that at the start of the trial under the same principle he was also subject to punishment for a maximum term of life imprisonment if convicted of robbery (Pen.Code, §§ 213 and 671; People v. Aldridge (1961) 197 Cal.App.2d 555, 560, 17 Cal.Rptr. 304 (double punishment, robbery including assault with a deadly weapon)); and finally that in view of his admission of the two prior felony convictions as alleged, he was subject, if convicted of either of the offenses charged, to imprisonment in the state prison for life as an habitual criminal pursuant to the provisions of section 644 of the Penal Code.

The question presented by the sentences for the principal offenses—not less than three years for rape (Pen.Code, § 264) or not less than five years, or one year, for robbery (Pen.Code, § 213) came before the court in People v. Clough (1881) 59 Cal. 438 under similar provisions of section 1070 as it read prior to its amendment in 1927. The court stated: ‘It is claimed on this appeal, that robbery is punishable for life; that the defendant was entitled to twenty peremptory challenges, and that the Court erred in its ruling. The section in question has never received a judicial interpretation, and the point is a new one. We are called upon to decide it without precedent or authority to aid us. ‘If the offense charged is punishable with death or with imprisonment in the State Prison for life, the defendant is entitled to twenty peremptory challenges.’ Such is the language of the section now under consideration. We have reached the conclusion that it is only in capital cases, or cases in which a life sentence is in terms affixed by the Legislature as the punishment of the crime, that the defendant is entitled to twenty peremptory challenges. Robbery is not such a crime. It is true that the maximum punishment is not designated by the statute, but the minimum is, and that need not be for a longer time than one year.' (59 Cal. pp. 441–442.) This principle, although questioned on occasion, has been uniformly followed in this state. (People v. Riley (1884) 65 Cal. 107, 108, 3 P. 413 (robbery); People v. Fultz (1895) 109 Cal. 258, 259, 41 P. 1040 (rape); People v. Logan (1899) 123 Cal. 414, 416, 56 P. 56 (rape); People v. Sullivan (1901) 132 Cal. 93, 94, 64 P. 90 (burglary); People v. Scott (1914) 24 Cal.App. 440, 442, 141 P. 945 (rape); People v. Purio (1920) 49 Cal.App. 685, 687, 194 P. 74 (robbery).)2

Defendant seeks to avoid the ruling of the foregoing line of cases because they were decided when the provisions of section 671 of the Penal Code read as follows: ‘Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the Court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed.’ (As enacted 1872 and until amended Stats.1951, ch. 1674, § 1, p. 3830.) He also points out that those cases arose before the passage of provisions providing for indeterminate sentences to be fixed administratively. (Stats.1917, ch. 527, p. 665; Pen.Code §§ 1168 and 3020–3025; see People v. Gonzales (1918) 36 Cal.App. 782, 173 P. 407.) He relies on the cases first referred to above for the proposition that now a ‘not less than sentence’ is automatically a life sentence until otherwise ordered by the Adult Authority. In Purio, supra, after reaffirming the principle of Clough, it was stated: ‘It may be added that the recent change in the law providing for an indeterminate sentence has not affected the rule in reference to the number of peremptory challenges.’ (49 Cal.App. at p. 687, 194 P. 74, 76.) Defendant contends this language is predicated upon the author's misconception of the indeterminate sentence law as reflected by his opinion in Gonzales, supra, where he stated: ‘Indeed, where there is a maximum and minimum term prescribed by the law, it was left prior to said act of 1917 to the discretion of the court to impose the punishment within these limits. That was the case in nearly all the penitentiary offenses, but the purpose of the new law was to take from the trial judge the discretion of fixing definitely the term of imprisonment and to vest it in the prison directors within the limits prescribed by the Penal Code.

‘We can see no merit in the claim that the law does not prescribe the maximum penalty for the crime of robbery. The maximum penalty ‘prescribed by the law’ is the extreme penalty that the law authorizes to be imposed; that is, life imprisonment in the present case, as we have seen.

‘The two sections of the Penal Code may be read together, and they amount to this: ‘Robbery is punishable by imprisonment in the state prison not less than one year and it may be for life.’' (36 Cal.App. at p. 784, 173 P. at p. 407.)

This interpretation is not necessarily inconsistent with the authorities which hold that a prisoner who may receive a maximum punishment of a life sentence may be treated as undergoing such until a sentence is fixed at a lesser term (Harmon and Larsen, supra), or cases which hold that a conviction which subjects the offender to a possible life sentence carries the possibility of greater punishment than one with a fixed term, and the latter must therefore yield to the former if double punishment would violate the provisions of section 654 of the Penal Code. (Bales, Collins and Aldridge, supra.)

In People v. Ralph (1944) 24 Cal.2d 575, 150 P.2d 401, the court had to determine the meaning of the term ‘sentenced to * * * imprisonment for life’ as used in the Youth Authority Act. (Welf. & Inst. Code § 1700 et seq., particularly § 1731.5(b).) The court noted the apparent conflict between the principle asserted by defendant herein, and that contained in Clough and its progeny, and observed: ‘The two lines of decisions hereinabove discussed are obviously conflicting insofar as their analogous application to the question involved in the cases of these appealing defendants is concerned. This, however, does not mean that either line need be overruled in order to dispose of the pending cases. Each line has become established over a long period of years as defining the law in the particular matters to which it respectively relates. The question before us is not one which is necessarily concluded by either of the two series of holdings. It is proper, therefore, in reaching a conclusion, to consider the purpose of the particular statute and certain fundamental rules governing the construction of criminal laws generally.’ (24 Cal.2d at p. 580, 150 P.2d at p. 403.)

The precept that each reference to life imprisonment must be interpreted in its own content, is further exemplified by the principle that the provisions of section 669 of the Penal Code do not preclude the sentencing court from making an indeterminate sentence which may carry a maximum penalty of life imprisonment consecutive to another sentence. (Ir re Quinn (1945) 25 Cal.2d 799, 801–805, 154 P.2d 875, and People v. Kostal (1958) 159 Cal.App.2d 444, 453–455, 323 P.2d 1020.) The applicable prohibitory phrase in section 669 is ‘if the punishment for any of said crimes is expressly prescribed to be life imprisonment, * * *.’ This language is similar to that of Clough which recites ‘cases in which a life sentence is in terms affixed by the Legislature as the punishment of the crime.’

Quinn recites that: ‘There is no merit in petitioner's contention. Certainly an indeterminate sentence without a fixed maximum is regarded for certain purposes as having the effect of a life sentence until and unless the prison term board had acted and fixed a term for years. (People v. Ralph (1944), 24 Cal.2d 575, 578, 150 P.2d 401; People v. Jones (1936), 6 Cal.2d 554, 556, 59 P.2d 89; People v. McNabb (1935), 3 Cal.2d 441, 456–457, 45 P.2d 334) but this proposition of law does not preclude our recognizing the reality that, in the absence of action by the board, an indeterminate sentence is an indeterminate sentence. It is neither a life sentence nor a fixed term sentence; it is entitled to recognition as a distinct species intelligibilis. The fact that for some purposes it has the legal effect of a life sentence does not mean that it must be regarded as the equivalent of a life sentence for all purposes. (People v. Ralph (1944), supra, at pp. 578–582 of 24 Cal.2d, 150 P.2d 401.) A defendant against whom such a judgment has been pronounced may or may not be required to spend the entire term of his natural life in prison.’ (25 Cal.2d at pp. 800–801, 154 P.2d at p. 876.)

Kostal establishes that an indeterminate sentence with a maximum term of life imprisonment did not become ‘life imprisonment’ within the meaning of section 669 because of the amendments to section 671 of the Penal Code in 1951 (Stats. 1951, ch. 1674, p. 3829) which recast it to read: ‘Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, punishment of such offender shall be imprisonment during his natural life subject to the provisions of Part 3 of this code.’

It is concluded that the right to twenty peremptory challenges is not available where the punishment for the offense charged is an indeterminate sentence which may be fixed at less than a life term. As stated in Sullivan, supra: ‘The construction thus given to the section [§ 1070] was made * * * years ago, and, as the legislature has not seen fit to make a change in the statute, we do not feel authorized to recede from the construction then given.’ (132 Cal. at p. 94, 64 P. 90.)

There remains for consideration the question of whether the possibility of punishment as an habitual criminal establishes that the defendant is entitled to the twenty peremptory challenges. Under a law which prescribed an absolute life sentence for a second conviction, if the second offense carried a maximum punishment of a life term at the discretion of the court (Pen.Code Code § 667, as adopted 1872, repealed Stats. 1903, ch. 96, p. 108), it was held error to deny the twenty challenges. (People v. Harris, supra, 61 Cal. 136; and People v. O'Neil, supra, 61 Cal. 435.) In Purio, supra, it was noted that in those cases a conviction would require the court to impose a life sentence without any discretion to reduce the term.

In People v. Pearson (1957) 150 Cal.App.2d 811, 311 P.2d 142, this court in construing the provisions of section 669 of the Penal Code, which have been referred to above, concluded: ‘For a certain prior offense defendant had been sentenced as an habitual criminal. That carries a life sentence. Pen.Code, § 644. In the case of conviction of two or more crimes (whether in the same proceeding or court or different proceedings or courts) ‘if the punishment for any of said crimes is expressly prescribed to be life imprisonment, whether with or without possibility of parole, then the terms of imprisonment on the other convictions, whether prior or subsequent, shall be merged and run concurrently with such life term. * * *’ Pen.Code, § 669.

‘It was mandatory, in the instant case, for the court to cause the terms of punishment for the two convictions here involved to run concurrently, not consecutively, with defendant's life term. Instead, the court ordered those two terms to run concurrently, as to each other, but to begin ‘at the expiration of any term or terms that defendant is presently required to serve and shall run consecutive thereto.’' (150 Cal.App.2d at p. 821, 311 P.2d at p. 148; and to the same effect see: People v. Douglas (1960) 187 Cal.App.2d 802, 811, 10 Cal.Rptr. 188; and People v. Tucker (1954) 127 Cal.App.2d 436, 437, 273 P.2d 934.)

These precedents suggest that section 1070 should be similarly construed. The People, however, urge that the ‘offense charged’ referred to in the section is the primary offense for which the defendant is on trial, and the punishment for that crime should determine the number of peremptory challenges. On this theory the existence of other facts which may increase the punishment to life imprisonment would give the defendant no greater rights. Some cases suggest that ‘A finding of habitual criminality * * * increases the punishment for the present offense.’ (People v. Williams (1961) 193 Cal.App.2d 394, 401, 14 Cal.Rptr. 279, 283 and see People v. Douglas, supra, 187 CalApp.2d 802, 811, 10 Cal.Rptr. 188.) It is recognized on the one hand that ‘habitual criminality’ is not a separate offense but a circumstance relating to the degree of punishment for the current subsequent offense. It does not have to be alleged as such. (People v. Williams, supra, 193 Cal.App.2d 394, 401, 14 Cal.Rptr. 279; People v. Millwood (1957) 150 Cal.App.2d 154, 156, 309 P.2d 495; People v. Dunlop (1951) 102 Cal.App.2d 314, 316, 227 P.2d 281; In re Mead (1949) 92 Cal.App.2d 536, 538, 206 P.2d 1091; People v. Israel (1949) 91 Cal.App.2d 773, 784, 206 P.2d 62); nor does the absence of such an express finding in the judgment vitiate the proceedings where the record reflects prior convictions and service of time in prison as required by the statute. (In re Basuino (1943) 22 Cal.2d 247, 250; People v. Vaile (1935) 2 Cal.2d 441–444, 42 P.2d 321; In re Valenzuela (1945) 71 Cal.App.2d 198, 199–205, 162 P.2d 301.)

On the other hand, the truth of the allegations of the prior convictions which give rise to the interposition of the provisions of section 644 in the sentencing is recognized as a separate question from that of guilt of the principal offense. In People v. Morton (1953) 41 Cal.2d 536, 261 P.2d 523, Justice (now Chief Justice) Traynor, stated as follows: ‘When the sole question on remand from an appellate court involves the proof of an alleged prior conviction, there is no reason to require the parties to retry the question of guilt of the primary offenses when the correctness of the determination of this question is not challenged by either party. There is nothing prejudicial involved in a limited new trial on the issue of the challenged prior conviction by a jury different from that which tried the issue of guilt of the primary offenses. That issue and the proof of prior convictions are clearly severable. In re McVickers [29 Cal.2d 264, 176 P.2d 40], supra; In re Seeley, 29 Cal.2d 294, 176 P.2d 24; People v. Carrow, supra. Proof of prior convictions or the adjudication that the defendant is an habitual criminal does not involve substantive offenses, but merely provide for increased punishment of those whose prior convictions fall within the scope of these statutes. In re McVickers, supra, 29 Cal.2d 264, 270–271, 176 P.2d 40, 44–45, and references cited there. The important relation between the primary offenses and the prior convictions charged is, therefore, the sentence to be imposed, and the jury does not participate in that.’ (41 Cal.2d at p. 543, 261 P.2d at p. 527; and see In re McVickers (1946) 29 Cal.2d 264, 270–271, 176 P.2d 40; People v. Figuiredo (1956) 146 Cal.App.2d 807, 810, 304 P.2d 161; People v. Allen (1953) 119 Cal.App.2d 365, 367, 259 P.2d 474; and People v. Thornton (1951) 106 Cal.App.2d 514, 518, 235 P.2d 227.)3

The foregoing distinction between the primary offense and the status of the defendant for punishment is further refined by the distinction between ‘those cases where a previous conviction of some other and distinct offense is alleged for the purpose of enabling the court to impose a greater punishment than is authorized for the offense charged when there is no prior conviction (see sections 666, 667, and 668 Pen.Code),’ and cases ‘where the fact of the prior conviction is an essential element of the offense charged.’ (People v. Oppenheimer (1909) 156 Cal. 733, 738, 106 P. 74, 77; and see People v. Davenport (1962) 210 Cal.App.2d 335, 340–341, 26 Cal.Rptr. 753; People v. Cole (1957) 148 Cal.App.2d 25, 29, 306 P.2d 49; People v. Hudgins (1943) 59 Cal.App.2d 175, 182–183, 138 P.2d 311; People v. Shunke (1941) 47 Cal.App.2d 542, 544, 118 P.2d 314; People v. Jeffries (1941) 47 Cal.App.2d 801, 804–806, 119 P.2d 190; People v. Wallach (1926) 79 Cal.App. 605, 608–609, 250 P. 578.) In the latter cases such as assault by a life prisoner (People v. Oppenheimer, supra), or possession of a weapon by a felon (People v. Davenport and People v. Shunke, supra), the conviction is an essential element of the crime charged, is referred to in the charging pleading, is read to the jury, must be proved and may be alluded to in argument. In the former cases no mention may be made of the prior conviction where it is admitted unless the defendant elects to testify and subject himself to impeachment by reference thereto. (Pen.Code §§ 1025 and 1093, subd. (1); People v. Hudgins and People v. Jeffries, supra.) Where the prior convictions are denied, however, the issues of the existence of the prior conviction and the identity of the defendant as the person to whom it relates under our practice are submitted to the jury with the issue of guilt of the principal offense. (Pen.Code § 1158; People v. Hoerler (1962) 208 Cal.App.2d 402, 407–409, 25 Cal.Rptr. 209; cf. n. 3, supra.)

The distinction noted in Oppenheimer gives some credence to the conclusion that where a prior conviction is merely alleged for such bearing as it may have on the issue of punishment, ‘the fact of the former conviction does not change the definition or character of the second offense.’ (People v. Wallach, supra, 79 Cal.App. at p. 609, 250 P. at p. 580.) Those authorities, however, refer to the provisions of sections 666, 667 and 668 of the Penal Code as relating to increased punishment. An examination of Harris and O'Neil, upon which appellant relies, reflects that they dealt with provisions similar to those now found in the foregoing sections. They, therefore, stand for the proposition that the ‘offense charged’ as set forth in section 1070 of the Penal Code refers not only to the primary offense, but also to any other charging allegations which would be relevant in determining the punishment. This construction is consistent with the situation which may arise under present section 666, subd. (3) and section 667, which deal with a second offense of petty theft, a misdemeanor. If there is a general denial of the present offense and the prior offense which makes it a felony, proof and reference to the prior conviction is proper. (People v. Blackwell (1962) 211 Cal.App.2d 353, 357–358, 27 Cal.Rptr. 221.) If the prior conviction is admitted no reference may be made to it. (People v. Gallinger (1963) 212 Cal.App.2d 851, 854–857, 28 Cal.Rptr. 472.) It cannot be contended, however, that under the latter situation the offense becomes a misdemeanor because the prior conviction is admitted. The defendant is still subject to imprisonment as a felon and that fact renders the offense cognizable in the superior court. (See In re Mitchell (1961) 56 Cal.2d 667, 16 Cal.Rptr. 281, 365 P.2d 177, passim; and People v. Mason (1936) 12 Cal.App.2d 84, 87–88, 55 P.2d 249.)

The conclusion that the ‘offense charged’ for the purpose of determining the number of peremptory challenges includes the allegations of the prior convictions, and that the punishment which controls that number is that which is imposed for the aggravated offense, has been followed in other jurisdictions. (Brough v. State (1940) 55 Ariz. 276, 101 P.2d 196, 277–280, cert. den. 311 U.S. 648, 61 S.Ct. 38, 85 L.Ed. 414; State v. Collins (1917) 53 Mont. 213, 217, 163 P.2d 102, 103; State v. Yandell (1907) 201 Mo. 646, 659–661, 100 S.W. 466, 470; and see State v. Sanchez (1954) 58 N.M. 77, 83–84, 265 P.2d 684, and analogous problem fn. 3.)

Respondent points to the provisions of paragraph (c) of section 644 which recite: ‘(c) Provided, however, that in exceptional cases, at any time not later than 60 days after the actual commencement of imprisonment, the court may, in its discretion, provide that the defendant is not an habitual criminal, and in such case the defendant shall not be subject to the provisions of this section or of Sections 3047 and 3048 of this code * * *.'4 It is urged that this provision renders the ‘imprisonment in the state prison for life’ an uncertain term rather than the mandatory life sentence required by Clough and found in Harris and O'Neil.

Prior to the adoption of the discretionary provisions (Stats.1935, ch. 602, § 1, p. 1699) it was clear that the indeterminate sentence provisions (Pen.Code, §§ 1168, 3020) were inapplicable where the judgment reflected prior convictions within section 644, and a general judgment for imprisonment necessarily implied a sentence of life imprisonment. (People v. Vaile, supra, 2 Cal.2d 441, 445, 42 P.2d 321; Ex Parte Heath (1924) 193 Cal. 192 and In re Heath (1920) 49 Cal.App. 657, 658, 194 P. 68.) The provisions embodied in paragraph (c) have been construed by the courts and it has been held that they do not render section 644 unconstitutional by leaving exceptional cases to the discretion of the court without a legislative guide (In re Pearson (1947) 30 Cal.2d 871, 876–878, 186 P.2d 401; People v. Israel, supra, 91 Cal.App.2d 773, 785, 206 P.2d 62; People v. Richardson (1946) 74 Cal.App.2d 528, 543, 169 P.2d 44; and People v. Keilly (1942) 54 Cal.App.2d 764, 768, 129 P.2d 939.) In People v. Stein (1948) 31 Cal.2d 630, 632–634, 191 P.2d 409, it is pointed out that although an order denying an application for relief under paragraph (c) is appealable, it would be difficult to interfere with the exercise of the trial court's discretion either way, except in the case where it acted on a prior conviction which was incompetent to establish habitual criminality.

In People v. Pearson, supra, it was argued that despite the provisions of section 669, the life sentence imposed by section 644 could run consecutively to another sentence, in the same manner as an indeterminate sentence with a maximum of life, because executive clemency in the form of a pardon or commutation of the life sentence would make it possible for the defendant to serve later sentences. This contention was rejected. (150 Cal.App.2d at p. 821, 311 P.2d 142.) The question then narrows down to whether the existence of the discretion conferred by paragraph (c) renders the term under section 644 indefinite, similar to an indeterminate sentence within the rule of Clough; or is such discretion merely a discretionary matter of grace like parole, pardon, or commutation of sentence which does not affect a term otherwise provided by law until exercised? The power may also be likened to that permitting the trial judge to weigh the evidence and reduce the degree of, or punishment for, an offense on motion for new trial. (Pen.Code § 1181, subds. (6) and (7); People v. Sheran (1957) 49 Cal.2d 101, 107–109, 315 P.2d 5.) It cannot be said that because the trial court may have the power to reduce a homicide charged as murder in the first degree to second degree or manslaughter which carry penalties, which under Clough would give no more than ten peremptory challenges (see People v. Smith (1901) 134 Cal. 453, 454–455, 66 P. 669), that the application of the rule of that case would reduce the twenty such challenges which are allowable where death or life imprisonment is a possible penalty. So here the existence of the discretionary power should not affect the general provisions of the statute which subject the person so charged to otherwise unqualified life imprisonment.

Similar considerations preclude giving any effect to the possibility of dismissing or striking the prior conviction, or, as in fact occurred here, failure to mention them in the judgment. The defendant by the omission has been sentenced as a first offender. (In re Harris (1947) 80 Cal.App.2d 173, 175–177, 181 P.2d 433; People v. Schneider (1939) 36 Cal.App.2d 292, 297, 98 P.2d 215; People v. Noland (1939) 30 Cal.App.2d 386, 390–391, 86 P.2d 363; cf. In re Basuino, supra, 22 Cal.2d 247, 250, 138 P.2d 297; and In re Valenzuela, supra, 71 Cal.App.2d 198, 204, 162 P.2d 301; see also People v. Holland (1957) 148 Cal.App.2d 933, 934, 307 P.2d 703; People v. Coyle (1948) 88 Cal.App.2d 967, 973, 200 P.2d 546, where reference is made to dismissal of prior convictions; and cf. People v. Sidener (1952) 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641 and People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241.) The right to the peremptory challenges occurred at the time of the impanelment of the jury. The record and defendant's rights at that time should not be affected by subsequent acts of grace by the prosecutor or the court. As stated in Brough v. State, supra, 55 Ariz. 276, at page 278, 101 P.2d 196, at page 197: ‘In this case it was known to all parties, including the court, as soon as the information was presented that if defendant was convicted thereunder his punishment would not be ‘for a first offense,’ but that he would be punished by a ‘substituted’ punishment as one previously convicted as provided in Section 4898, supra. It is true that the defendant was not charged with a new offense but facts were alleged in the information which the law provides if established shall enhance the punishment prescribed ‘for a first offense.’ This was as plainly evident as what his punishment would be if he were being tried for a first offense. In such case he would have been allowed seven peremptory challenges. Because the information charges a previous conviction, the severer punishment was ‘substituted for those prescribed for a first offense,’ and such substituted punishment might be for life.'

It is concluded, therefore, that section 1070 must be interpreted as conferring the number of peremptory challenges applicable to the aggravated offense.

The question remains as to whether or not the error was prejudicial. Many of the cases hereinbefore referred to suggest that when the defendant fails to exhaust the peremptory challenges which are allowed, or, if exhausting them, he fails to specifically request the court for another challenge, no prejudicial error has been suffered. (People v. Bugg, supra, 79 Cal.App.2d 174, 176, 179 P.2d 346; People v. Aguinaldo, supra, 3 Cal.App.2d 254, 260, 39 P.2d 505; State v. Roberts, supra, 91 Utah 117, 127–130, 63 P.2d 584; Brough v. State, 55 Ariz. 276, 283, 101 P.2d 196; State v. Collins, supra, 53 Mont. 213, 217–218, 163 P. 102; State v. Yandell, supra, 201 Mo. 646, 100 S.W. 466; and see People v. Bennett (1953) 119 Cal.App.2d 224, 226, 259 P.2d 476, and State v. Squier, supra, 56 Nev. 386, 399, 54 P.2d 227, 232.)

Respondent seeks to avoid the effect of the error by implying that the court may have misunderstood defendant's request for twenty challenges as being one to secure ten peremptory challenges for each offense charged. It is clear that there is no right to an increased number of peremptory challenges because two or more offenses which are properly joined are the subject of one trial. (People v. Kelly (1928) 203 Cal. 128, 135, 263 P. 226; People v. Menne (1935) 4 Cal.App.2d 91, 107, 41 P.2d 383; People v. Potigian (1924) 69 Cal.App. 257, 266, 231 P. 593; and People v. Howard (1916) 31 Cal.App. 358, 369, 160 P. 697.) There is nothing in the record to support this implication. The amended information which first charged the prior convictions was filed over the objection of defendant the day before the date set for the trial. On that day he was re-arraigned on the amended information, reiterated his pleas of not guilty to the principal charges, and admitted the prior convictions as alleged. On the following day the trial commenced. The only reference to the number of challenges in the record are the matters set out above. Since defendant did not advance an erroneous ground for the exercise of more than ten peremptory challenges it is not necessary to determine whether in such event he could change his strategy on appeal and now urge a valid ground. (See in regard to evidence properly excluded on the theory it was offered, but possibly admissible on another theory: Estate of Parkinson (1923) 190 Cal. 475, 476–477, 213 P. 259; Larson v. Solbakken (1963) 221 Cal.App.2d 410, 422, 34 Cal.Rptr. 450; People v. Lint (1960) 182 Cal.App.2d 402, 414–415, 6 Cal.Rptr. 95; Costa v. Regents of Univ. of California (1953) 116 Cal.App.2d 445, 462, 254 P.2d 85.)

The most that can be said for respondent's position is that it bears some analogy to the principle that ‘Error cannot be predicated on the overruling of an objection when the particular grounds of the objection are not stated, unless they are obvious, or otherwise known to the court. ‘To entitle an objection to notice, it must not only be on a material matter, affecting the substantial rights of the parties, but its point must be particularly stated. This is not only a statutory regulation, but it is the uniform rule, so far as we are aware, of all Courts of Record. The party, as the authorities say, must lay his finger on the point of his objection to the admission or exclusion of evidence.’ Kiler v. Kimbal, 10 Cal. 267, 268. And see People v. Modell, 143 Cal.App.2d 724, 730, 300 P.2d 204; People v. Tolmachoff, 58 Cal.App.2d 815, 826, 138 P.2d 61. Where an objection is in general terms and the alleged defect could have been cured by the party making the offer if the reason it was objected to had been given, a reviewing court will not consider a claim that the trial court erred when the precise ground of objection was not clearly or at all specified.' (Kirkpatrick v. Tapo Oil Co. (1956) 144 Cal.App.2d 404, 411, 301 P.2d 274, 278, and see Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 775–776, 87 P. 622; Cooper v. Mart Associates (1964) 225 Cal.App.2d 108, 118, 37 Cal.Rptr. 145; People v. Horn (1960) 187 Cal.App.2d 68, 77, 9 Cal.Rptr. 578; and People v. Lint, supra, 182 Cal.App.2d 402, 414, 6 Cal.Rptr. 95.) As in Kirkpatrick, if out of the presence of the jury the attention of the prosecutor and the court had been expressly directed to the fact that defendant was contending he was subject to life imprisonment he might have been granted twenty challenges, or the failure to allow him further challenges might have been cured by the abandonment, which subsequently ensued, of the charges of prior convictions. Similarly, insofar as the complexity of the question of the number of peremptory challenges is concerned, the following language from Bundy v. Sierra Lumber Co., supra, is singularly appropriate: ‘Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application, that, under an omnivagant objection to a question, they can apply with legal accuracy some particular principle of law, which the objection does not specifically present. Counsel for appellant could just as readily have directly presented to the lower court the particular objections which he urges now, instead of objecting generally, and we think that, in order to support any complaint on this appeal relative to the ruling, he should have done so.’ (149 Cal. at p. 776, 87 P. at p. 623.) In further support of respondent's position it is noted that by virtue of his admissions defendant was tried only for robbery and rape, was granted the number of peremptory challenges appropriate for such a trial, and was in fact sentenced to the indeterminate sentence applicable to a first offender.

On the other hand, at the time the court ruled on his exercise of the challenge the defendant by virtue of his prior admission of such convictions stood before the bar of justice faced with a life sentence more onerous in respect to parole than the life sentence for more grievous crimes. He asserted his right to twenty challenges in timely fashion. In fact by exercising an additional challenge, despite the court's ruling, he found himself on the denial thereof confronted with a juror who may have been unfavorably influenced by the challenge, and who knew a good many of the deputy sheriffs in the county through service on the sheriff's reserve for three years during the war. This juror subsequently became foreman of the jury.

People v. Diaz, supra, 105 Cal.App.2d 690, 234 P.2d 300, points out that the denial of a peremptory challenge ‘was not a mere irregularity but was error which substantially affected the rights of the defendant.’ (P. 695, 234 P.2d p. 303.) The opinion recites: ‘This is not a case where a defendant took the chance of a trial by regular jurors who he knew had not been impaneled in conformity with the statute and, after an adverse verdict, claimed error; nor is it a case of a defendant leading a trial judge into error, and then complaining of it. Defendant was specifically and definitely told by the court that he would not be allowed more than 20 peremptory challenges to the regular panel and the alternate. It is not a case of a defendant merely being deprived of a right to exercise a peremptory challenge to the alternate juror who did not participate in the verdict. It is a case of the defendant being allowed only 18 peremptory challenges to the regular panel when he was entitled to 20. Under the circumstances, after the court had ruled, defendant was not required, as the attorney general intimates, to peremptorily challenge a particular juror of the regular panel, and thus antagonize the challenged juror, and perhaps others, in order to preserve his right. Where a court has made its ruling, counsel must not only submit thereto but it is his duty to accept it, and he is not required to pursue the issue. [Citations.] Furthermore, it was the duty of the trial judge to safeguard the rights of the defendant. A defendant's fundamental rights are not lost because the trial judge is not familiar with the law. * * *

‘It has been consistently held that the denial of the right of peremptory challenge is reversible error. [Citations.]

‘Respondent contends that section 4 1/2 of article VI of the Constitution applies and that the error was not prejudicial. Defendant contends the provision does not apply. The authorities sustain defendant's position. The constitutional provision reads: ‘No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ Const., art. VI, § 4 1/2.

‘The denial of the right of peremptory challenge cannot be said to be a mere matter of procedure. The right is absolute. People v. Helm, 152 Cal. 532, 535, 93 P. 99. It is a substantial right. It has been said that it is one of the chief safeguards of a defendant against an unlawful conviction and that the courts ought to permit its freest exercise within the limitation fixed by the legislature. People v. Edwards, 101 Cal. 543, 544, 36 P. 7. As said by the Supreme Court of the United States in Hayes v. State of Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578, 580, experience has shown that one of the most effective means to free the jury box from persons unfit to be there is the exercise of the peremptory challenge. The right may not be abridged or denied. Arbitrary abridgment or denial of the right runs counter to principles vital to the integrity and maintenance of the system of a constitutional right of trial by jury.’ (105 Cal.App.2d 690, 695–697, 234 P.2d 300, 303–304; and see Leibman v. Curtis (1955) 138 Cal.App.2d 222, 225–228, 291 P.2d 542, 292 P.2d 270; and cf. Buckley v. Chadwick (1955) 45 Cal.2d 183, 201–203, 288 P.2d 12, and dissent 206–212, 289 P.2d 242.) The foregoing furnishes a complete answer to the arguments made by the People. The judgment must be reversed.

Consideration has been given to the fact that on retrial, there being no finding against the prior conviction, defendant who is presently sentenced as a first offender for rape may have to stand trial again as an habitual criminal. (See People v. Coyle, supra, 88 Cal.App.2d 967, 973, 200 P.2d 546.) This is a matter upon which the defendant and not the court may reflect. Here the error urged must be exposed and appropriate relief granted.

Alleged Errors in the Admission of Evidence

Appellant states, ‘The trial court erred in admitting against appellant evidence illegally obtained and illegally searched.’ In view of the fact that the questions thereby raised may arise on retrial, they are herein considered.

(a) It is first alleged that defendant was arrested without probable cause.

The evidence reflects that following a report by the victim, a description was broadcast. An officer of the Richmond Police Department saw defendant, who answered the description, and another man walking on a street in the neighborhood. He asked the defendant for identification and detained him until another officer who had interviewed the victim could arrive. When the latter came on the scene, he asked the defendant to show his money. It included fourteen pennies which were the same number of pennies which the victim had reported had been taken from her. The defendant was requested to accompany the officers to confront the complainant.

The trial court heard testimony out of the presence of the jury and concluded that the defendant was not arrested until after he was identified.5 Defendant contends that the circumstances are similar to those in which it has been found an arrest occurred with the primary detention (see People v. Gibson (1963) 220 Cal.App.2d 15, 21, 33 Cal.Rptr. 775; People v. Corrao (1962) 201 Cal.App.2d 848, 852, 20 Cal.Rptr. 492, and Jackson v. United States (1964) 118 U.S.App.D.C. 341, 336 F.2d 579, 580), and that he was arrested when first interrogated and directed to wait for the second officer, or at least no later than when he entered the car. The question of consent is a question of fact to be determined in the light of all the circumstances. (See People v. Bilderbach (1965) 62 A.C. 804, 809, 44 Cal.Rptr. 313, 401 P.2d 921; People v. Burke, supra, 47 Cal.2d 45, 49 and People v. Michael (1955) 45 Cal.2d 751, 753–754, 290 P.2d 852; and cf. People v. Haven (1963) 59 Cal.2d 713, 717–719, 61 CalRptr. 47, 381 P.2d 927 and Castenada v. Superior Court (1963) 59 Cal.2d 439, 442–444, 30 Cal.Rptr. 1, 380 P.2d 641.) It cannot be said that the evidence requires a finding that defendant was arrested prior to his identification.

In any event, it appears that the officers were doing no more than has been suggested by our Supreme Court. (People v. Mickelson (1963) 59 Cal.2d 448, 454, 30 Cal.Rptr. 18, 380 P.2d 658.) Furthermore, it appeared that a felony had been committed, and from the description given coupled with the identity of the number of pennies, and the proximity to the scene, there was reasonable cause to believe that the defendant had committed it. Therefore, there was probable cause to arrest the defendant at the time even if he had not consented to accompany the officers. (Pen.Code, § 836, subd. 3; People v. Schader (1965) 62 A.C. 751, 757–761, 44 Cal.Rptr. 193, 401 P.2d 665; People v. Ingle, supra, 53 Cal.2d 407, 412–413, 2 Cal.Rptr. 14, 348 P.2d 577.) It is not profitable therefore, to speculate as to whether or not he would in fact have been arrested had he refused to accompany the officers.

For the foregoing reasons it cannot be said that his subsequent identification by the victim on that evening, and at a subsequent line-up, or the use of tests disclosing seminal stains on the shorts taken from him after his arrest, were the product of an illegal arrest. (Cf. Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. California (1963) 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513; Stover v. California (1964) 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; Fahy v. Connecticut (1963) 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.)

(B) Secondly, it is contended that evidence of his confrontation with the complainant was improper because defendant was not represented by counsel or advised of his right thereto. (See Gideon v. Wainwright (1963)372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Dorado (1965)62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361.) Defendant makes a plausible argument to the effect that if a suspect needs counsel before being interrogated he needs the advice of counsel to insure that he is identified under circumstances which are free from passion and emotion, and in a neutral environment. He urges a blanket condemnation of identification by the victim on the street, or at the scene. Such a proposal not only goes beyond existing decisions concerning the right to counsel, but offends the suggestion made in People v. Mickelson, supra, 59 Cal.2d 448, 454, 30 Cal.Rptr. 13, 380 P.2d 658, and the principle that the defendant has no right to refuse to be identified. (See People v. Lopez (1963) 60 Cal.2d 223, 244, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Branch, supra, 127 Cal.App.2d 438, 440, 274 P.2d 31.) Respondent points out that a delay in identification, which may be negative as well as positive, would be unfair to the innocent, and would unduly delay investigation to determine the true offender if the prior suspect were cleared by the confrontation. The circumstances of the identification can always be considered by the trier of fact in determining what weight it should be given. (People v. Knowles (1950) 35 Cal.2d 175, 179, 217 P.2d 1, cert. den. (1950) 340 U.S. 879, 71 S.Ct. 117, 95 L.Ed. 639.)

(C) He further asserts that his underwear was illegally seized, and that in any event it should not have been subjected to tests without a search warrant.

The seizure of the underwear, in view of the nature of the offense charged, was justified as would be the seizure of a blood-stained shirt tending to connect a person with an offense in which blood had flowed. (See People v. Teale (1965) 63 A.C. 175, 187, 45 Cal.Rptr. 729, 404 P.2d 209.) The fact that the evidence was not taken from the person of the defendant until arrival at the police station, presumably for reasons of modesty, does not make the search and seizure at a place remote from the arrest. The right to seize arose at the time of the arrest, it was effected by the seizure of defendant and his clothes, and the subsequent separation of the defendant and the seized garments does not make the seizure and retention of the latter illegal.

Defendant relies upon United States v. Lefkowitz (1932) 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877; and Gouled v. United States (1921) 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, for the principle that neither a legal arrest nor even a search warrant will justify the seizure and use of materials which are merely evidence, as distinguished from contraband, fruits of the crime, or means and instrumentalities of the crime. (See Morrison v. United States (1958) 104 U.S.App.D.C. 352, 262 F.2d 449, 451.) It is unnecessary to determine to what extent this rule is dependent on the Fifth Amendment of the United States Constitution, or on principles prohibiting indiscriminate searches or seizures, or to what extent it is applicable in this State. In Preston v. United States, supra, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, it is recognized in the unanimous opinion of the court that, ‘The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control.’ (376 U.S. at p. 367, 84 S.Ct. at p. 883; emphasis added.)

The evidence having been legally seized its subsequent examination and analysis does not offend any constitutional principles. Preston v. United States, supra, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 and People v. Burke, supra, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67, involve searches of articles which were not properly seized. It is unnecessary to determine whether analysis constitutes a search, because, as noted above, the material analyzed was properly in custody of the law.

It is concluded that there was no error in the receipt of the evidence referred to in the foregoing.

Alleged Errors in the Instructions

(A) Defendant would predicate error on the reading of an instruction, admittedly correct, concerning the effect of defendants' prior felony convictions on his credibility, separate and apart from other instructions concerning credibility. He asserts that undue emphasis and weight thereby were given to those prior convictions. The court did instruct the jury that they were ‘not to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all the instructions and as a whole, and to regard each in the light of all the others.’ (See CALJIC No. 5.) It is presumed that the jury followed this instruction. (People v. Robles (1962) 207 Cal.App.2d 891, 897, 24 Cal.Rptr. 708.) No error is apparent. In any event, further discussion is unnecessary as a retrial may not present the same question.

(B) Defendant offered an instruction setting forth six purposes for which evidence of another offense could be considered. (CALJIC No. 33.) The court's instructions only referred to consideration for one of these purposes—plan, scheme, or design. Defendant refers to People v. Lindsay (1964) 227 Cal.App.2d 482, 504–505, 38 Cal.Rptr. 755 as requiring that the jury consider the evidence for more than one purpose, and claims that the court's instruction here deprived him of a jury trial. (See People v. Costello (1943) 21 Cal.2d 760, 766, 135 P.2d 164.) Defendant overlooks that the instruction in question is a limiting instruction on the effect which may be given evidence which has been offered, if believed. It does not purport to determine whether such evidence should be believed or not, or what weight it should be given on the issues to which it is pertinent. The failure to give defendant's instruction restricted its use beyond that which defendant suggested, and no error can be predicated thereon. To what extent the suggested instruction should be used, and to what extent the jury should be charged in accordance with the Lindsay case, will depend on the state of the evidence in the event of retrial.

(C) The question of whether a separate cautionary instruction relating to the evidence of a prosecutrix in a rape case (see People v. Nye, supra, 38 Cal.2d 34, 40–41, 237 P.2d 1; People v. Putnam (1942) 20 Cal.2d 885, 890, 129 P.2d 367) should be given in respect of the testimony of a victim of an allegedly similar assault, may or may not arise on a subsequent trial. If so, any possibility of error may be obviated by couching the instruction necessarily given in regard to the testimony of the victim in this case in general terms.

Alleged Misconduct of the Prosecutor

Examination of the alleged errors in regard to the argument of the prosecutor would be profitless because the same remarks may not be resorted to again. In passing, however, it is noted that the remarks of which complaint is made appear within the bounds of legitimate argument. (Cf. People v. Burwell (1955) 44 Cal.2d 16, 39–41, 279 P.2d 744; People v. Gutthaus (1962) 208 Cal.App.2d 785, 793, 25 Cal.Rptr. 735; People v. Bartlett (1957) 153 Cal.App.2d 574, 578, 314 P.2d 995; and People v. Dozier (1939) 35 Cal.App.2d 49, 58, 94 P.2d 598; with People v. Sorensen (1964) 231 A.C.A. 113, 116–117, 41 Cal.Rptr. 657; People v. Whitehead (1957) 148 Cal.App.2d 701, 705–706, 307 P.2d 442; People v. Talle (1952) 111 Cal.App.2d 650, 676, 245 P.2d 633; and People v. Hail (1914) 25 Cal.App. 342, 356–363, 143 P. 803.)

The judgment is reversed.


1.  The record reflects: ‘MR. LARSON [attorney for defendant]: One minute, Your Honor—the Defendant would like to exercise a challenge and excuse Mr. Blodgett. THE COURT: On what grounds? MR. LARSON: Peremptorily, Your Honor. THE COURT: What grounds? MR. LARSON: On the ground that we have twenty (20) challenges and we have used ten (10). THE COURT: The Court will find that you are entitled to ten (10) and you have used ten (10)—and will disregard the challenge. The Clerk will swear the jury. MR. LARSON: I should also object to the swearing of the jury at this time, Your Honor. THE COURT: The record will note your objection, Mr. Larson. MR. LARSON: Thank you.’

2.  This rule appears to be limited to California. It is stated generally: ‘Where the right is given in the case of trials for offenses punishable in a certain manner, the right exists if the offenses charged may be so punished, although the case is one where the court may impose a lighter punishment’ (50 C.J.S. Juries, § 280 c. (1), fn. 27, p. 1070); and ‘* * * [an] accused is entitled to the number of challenges corresponding to the greatest punishment that may be imposed for the offense charged’ (idem. § 281 b. (2), fn. 89, pp. 1071, 1075; see also Dull v. People (N.Y.1847) 4 Denio 91, 92–93). Attempts to extend the California rule have met with criticism and outright rejection. (Brough v. State (1940) 55 Ariz. 276, 279–280, 101 P.2d 196, 197–198, cert. den. 311 U.S. 648, 61 S.Ct. 38, 85 L.Ed. 414; State v. Roberts (1937) 91 Utah 117, cf. pp. 119–121 and pp. 126 and 131, 63 P.2d 584, cf. pp. 585–586 and 588–589; State v. Squier (1936) 56 Nev. 386, 399, 54 P.2d 227, 232.)

3.  In some jurisdictions the question of habitual criminality must be separately tried if an issue is raised as to the existence of a prior conviction or the identity of the defendant as the person to whom it relates. (See 25 Am.Jur. 270–271, ‘Habitual Criminals,’ § 23.) In such situation there is a conflict of authority as to whether the defendant should have no peremptory challenges because the proceedings are merely collateral to the general issue of defendant's guilt or innocence (People v. Reese (1932) 258 N.Y. 89, 103, 179 N.E. 305, 309, 79 A.L.R. 1329, 1336); or whether the habitual criminal proceedings in providing for a jury trial adopt the provisions for peremptory challenges which are generally applicable to jury trials on a crimmal charge. (State v. Durham (1945) 177 Or. 574, 579–581, 164 P.2d 448, 450–451, 162 A.L.R. 422, 427–428 and see note 162 A.L.R. 429–436.)

4.  Penal Code, §§ 3047 and 3048, as modified by §§ 3047.5 and 3048.5, require service of minimum terms of nine and twelve years for those imprisoned under §§ 644, subd. (a) and 644, subd. (b), respectively, before eligibility for release on parole. Compare § 3046 which fixes minimum time to be served for an ordinary sentence of life imprisonment at seven years.

5.  The officer testified: ‘A. I asked him would he come with me to Seventh and Macdonald for identification. At first he hesitated, and then—Q. Why? A. Well, he stated that he didn't want to get into the police vehicle—because the last time he had been in he had stayed in jail for three (3) days or so. Q. All right, and what did you tell him then, Officer? A. I informed him that if he didn't do anything that he wouldn't have anything to worry about, and that if he wasn't responsible then he wouldn't be detained any longer. Q. And, what did he say then? A. He said ‘Well, let's go,’ and he got into the police vehicle.' * * * ‘I asked him would he come down to Sixth and Macdonald for identification purposes. Q. And, did he do so? A. At first he hesitated—and then he did.’ Subsequently the defendant's testimony was as follows: ‘Q. And, then he told you that you would not be detained if this lady didn't identify you, isn't that right, Mr. Shaw? A. Not exactly like that. Q. Well, it was the general meaning, that they couldn't keep you if she said that you weren't the man. A. I'm not going to—I couldn't accept that as the general meaning. The Court: Well, tell us, what did he say? The Witness: Because the way that the man spoke to me—it was more so a threat to come along, as it were—an order. I didn't have no other choice. Miss Snyder: Q. You did go along? A. Yes, I went along.’ On rebuttal a second officer testified: ‘Q. I'll ask you Officer, whether or not the Defendant, in response to a suggestion that he go to the scene where the victim was to identify him or not—that after he had been told that he could be released if he were not identified—I'll ask you whether or not he didn't say ‘Hell, let's get up there?’ A. I don't remember the exact words, but he was insisting on going up there—because he wanted to be released then. Q. And, did he state further at that time ‘Remember, if she doesn't identify me—I get to go?’ A. Words to that effect, yes.'

SIMS, Justice.

SULLIVAN, P. J., and MOLINARI, J., concur.

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