PEOPLE v. CRANE (1983)

OPINION

Following a jury trial, defendant Robert Edward Crane was convicted of murder (Pen.Code, § 187), robbery (Pen.Code, § 211), burglary (Pen.Code, § 459), and use and possession of a firearm by a felon (Pen.Code, §§ 12021, 12022, 12022.5).   In addition, with respect to the murder conviction, the jury specifically found to be true the special circumstances alleged that the murder was wilful, deliberate and premeditated and that it was committed during the course of a robbery.  (Former Pen.Code, § 190.2, subd. (c)(3)(i);  now embodied in Pen.Code, § 190.2, subd. (a)(17)(i)).

Defendant was sentenced to state prison for life without possibility for parole for the murder conviction.²  Sentencing for the remaining convictions was stayed pending appeal;  said stay to become permanent upon completion of sentence imposed on the murder conviction.   This appeal followed.

Defendant represented himself throughout the trial after a motion to relieve the State Public Defender was granted.

Defendant contends that the evidence was insufficient to support the jury's special circumstances finding of premeditated and deliberate murder.   Defendant also argues his conviction should be reversed on the following grounds:

(1) That he was denied his Sixth and Fourteenth Amendment rights under the United States Constitution to effective self-representation and due process by:

(a) conditions of imprisonment;

(b) inadequate propria persona privileges;  and

(c) the use of physical restraints in the courtroom;

(2) That the trial court improperly denied his motion to suppress evidence (Pen.Code, § 1538.5);

(3) That the trial court erred in admitting hypnosis testimony;

(4) That exclusion for cause of jurors holding conscientious scruples against the imposition of the death penalty denied defendant his right to a jury drawn from a representative cross-section of the community;

(5) That the punishment imposed in this case constitutes cruel and unusual punishment in violation of both the United States and California Constitutions.

Lastly, defendant argues that this case should be remanded in order to allow the trial judge to strike the special circumstances finding in accordance with Penal Code section 1385.

FACTS

On Monday, January 30, 1978, Wayne and Barbara Golin owned and operated Leisure World Jewelers in Seal Beach.   On that day they returned from lunch at approximately 2 p.m.   Several customers, including Renee Rockafeller and Theresa Shemberger, were waiting to get in the store.

Mr. Golin was busy with other customers, so Mrs. Rockafeller visited with Mrs. Golin.   While doing so, both Mrs. Golin and Mrs. Rockafeller noticed the defendant enter the store, walk to the center of the store, and look around.   As Mrs. Golin walked toward him to see if she could help him, he turned and left the store.   Theresa Shemberger who was also in the store saw the defendant.   Approximately five minutes later, the defendant came back into the store.   By this time most customers had left and only Renee Rockafeller and another customer remained.   As the defendant walked in, Mr. Golin commented to Mrs. Rockafeller:  “I don't like the looks of that guy.   He has been casing my store a couple of times today.”

Meanwhile, Mrs. Golin had walked behind her husband in order to get a catalog for a customer.   She noticed that her husband had walked over to the counter and laid his hand on it.   She knew he had a gun in a cardboard box with a rag over it.   Whenever he did not feel good about someone, her husband would slowly walk over and place his hand on the counter.

Mr. Golin asked the defendant if he could help him.   The defendant walked up to the counter and said he would like to see some gold chains.   Mr. Golin responded that they had no gold chains but that he would get some from Los Angeles if defendant would leave a deposit.

At this point, Mrs. Rockafeller and Mrs. Golin saw defendant pull a gun from his left side, its butt hitting the counter.   Mr. Golin tried to duck, and defendant shot him in the shoulder.   Mr. Golin fell over to his left side, defendant took a couple of steps over, and Mr. Golin managed to use his own gun, shooting defendant in the arm.   Angered, defendant cursed Mr. Golin, stepped toward him and shot him in the head.

Defendant's accomplice, Eddie Burnett entered the store as defendant pulled his gun and immediately after the shots he headed for the safe.   Mrs. Golin fell to the floor and tried to crawl toward the front door to get help.   She was noticed by defendant, however, when she set off the “ding dong” pad at the front door.   Defendant approached her and after threatening to kill her, stepped out of the store.   He was shortly followed by his accomplice, Burnett, who also threatened Mrs. Golin as he fled with a paper bag containing jewelry.

 Outside the store, defendant passed directly in front of Elysabeth Tompkins who got a good look at him.   As the robbers were getting into their car they were observed by Ida Trower who was parked in the shopping center behind the jewelry store.   Mr. Golin was transported to the hospital where he died from the gunshot wound to his head.

On February 1, 1978, 40 or 50 police officers surrounded Lorrayne Pinto's house in El Monte and by means of a loud speaker ordered the occupants of the house to exit.   Defendant Crane and Eddie Burnett were among the occupants and they were arrested as they came out.   The police secured a search warrant for Pinto's house where they found two suitcases filled with jewelry, three revolvers, and a newspaper with an article entitled “Bandit Slays Seal Beach Jeweler.”   Two of these newspapers were also retrieved from the trash can outside the house.   Lab tests performed on one of the weapons seized at Ms. Pinto's house (a .38 caliber Smith and Wesson revolver) determined it matched two bullets recovered from the area where Mr. Golin had been lying after being shot.   A metal fragment removed from Mr. Golin's skull was fired from the same weapon.

The police also searched a Buick car parked in front of Ms. Pinto's house.   There were red spots on the driver's seat.   In the trunk they found a paper bag containing jewelry, jewelry envelopes, and a coin envelope.   They also found a toilet kit containing .38 caliber ammunition and a bottle of theatrical scar make up.

Several days after defendant's arrest, Ms. Shemberger, Trower, Tompkins and Mrs. Rockafeller all identified defendant as the man who walked into the Golins' store and fled the store after shooting Mr. Golin.

DISCUSSION

V

Defendant's next argument is that exclusion for cause of prospective jurors, who affirmatively stated that they could be impartial in deciding the issues of guilt and truth of alleged special circumstances but who were unequivocally opposed to the imposition of the death penalty ⁵ regardless of the evidence presented, deprived defendant of his right to a jury drawn from a representative cross-section of the community.  (U.S. Const., 6th & 14th Amends.;  Cal. Const., art. 1, § 16.)

There is no contention that exclusion of these prospective jurors was made in violation of the guidelines set forth by Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.⁶  Thus, the issue raised by the defendant is whether the selection of a Witherspoon death-qualified jury violates the constitutional right to a jury drawn from a representative cross-section of the community.   We hold that it does not.

Defendant's contention is based upon the assertion that exclusion for cause of veniremen who were unalterably opposed to the imposition of the death penalty is the equivalent of systematic exclusion from jury service of a legally “cognizable group” under Rubio v. Superior Court (1979) 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595.⁷  We disagree.

 It is well settled that selection of a petit jury from a representative cross-section of the community plays a crucial role in protecting the constitutional right to a trial by an impartial jury.  (Taylor v. Louisiana (1975) 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690;  People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.)   As was stated in Taylor v. Louisiana, supra, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, “[t]he purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.  [Citations.]”  (Id., at p. 530, 95 S.Ct. at p. 697.)   The representative cross-section requirement does not mean, however, “that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community;  ․ [b]ut it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.”  (Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181.)

In keeping with the above principles the courts have repeatedly safeguarded the cross-sectional requirement by reversing convictions or judgments in cases where certain groups or identifiable segments of the community defined by race, sex, occupation or personal beliefs had been systematically excluded from participating in jury service at either the initial venire/jury panel stage (Taylor v. Louisiana, supra, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 [women];  Peters v. Kiff (1972) 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 [blacks];  Thiel v. Southern Pacific Co., supra, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 [daily wage earners];  People v. White (1954) 43 Cal.2d 740, 278 P.2d 9 [working class people] ), or at the later challenge stage of the jury selection process.  (Whitherspoon v. Illinois, supra, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 [challenge for cause against all veniremen voicing general objections to the death penalty];  People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 [peremptory challenges against black jurors on the ground of “group bias” alone].)

Our examination of these cases reveals that the representative cross-section rule was generally applied when two elements were satisfied:  (1) There was “systematic” exclusion of individual veniremen simply because of their membership in certain groups or identifiable community segments, and (2) such systematic exclusion was totally unrelated to the individual's ability to perform the function of an impartial juror despite his membership in the given group.

Here, we are presented with exclusion of prospective jurors for cause at the challenge stage of the jury selection procedure.   Such exclusion was not, however, “systematic” within the meaning of the cases above cited.  (Cf., People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, where the prosecutor exercised peremptory challenges against black jurors on the ground of “group bias” alone.)   By way of contrast, the prospective jurors here were excluded on the basis of their “individual” bias against imposing the death penalty in every case regardless of the specific evidence presented.   Further, these jurors unlike the jurors in Witherspoon were not excluded for voicing “general objections” to the death penalty;  rather, their exclusion was exercised when it became clear that their objection to the death penalty was so individualized that it would preclude them from ever evaluating the specific evidence before them in a dispassionate, objective way.

  One of the primary purposes of the representative cross-section rule is to achieve “overall impartiality” in the jury selection process by insuring that the initial pool of veniremen reflects “the interaction of the diverse beliefs and values the jurors bring from their group experiences.”  (People v. Wheeler, supra, 22 Cal.3d 258, 276, 148 Cal.Rptr. 890, 583 P.2d 748.)   Likewise, the goal of impartiality is furthered at the challenge stage of the process by insuring the removal of prospective jurors who entertain a “specific bias” concerning the particular case on trial or the parties or witnesses who will participate in it.  (Id., at p. 274, 148 Cal.Rptr. 890, 583 P.2d 748.)   We believe that inclusion of veniremen who have a “specific bias” works at odds with the “overall impartiality” the jury selection process seeks to achieve.   Therefore we disagree with defendant's assertion that inclusion of veniremen who admit being specifically biased against the imposition of the death penalty, regardless of the evidence introduced at the trial, is dictated by the representative cross-section rule.

 Accordingly, we hold that where, as in this case, there has been no showing of “systematic” exclusion of prospective jurors at either the initial venire/jury pool stage or at the later challenge stage of the jury selection process and where individual veniremen have been challenged for cause upon a showing that they entertain a “specific bias” precluding them from performing their jury duty with impartiality, there is no violation of defendant's constitutional right to a jury drawn from a representative cross-section of the community.   Consequently, the “cognizable group” analysis of Rubio v. Superior Court, supra, 24 Cal.3d 93, 98, 154 Cal.Rptr. 734, 593 P.2d 595, is inapplicable to the case under review.

VI

Defendant also asserts that the penalty imposed for his murder conviction under Penal Code section 190.2 ⁸ constitutes cruel and unusual punishment in violation of the United States and California Constitutions.  (U.S.Const., 8th & 14th Amends.;  Cal.Const., art. 1, § 17.)   This assertion is based on the argument that life imprisonment without possibility of parole is an extreme penalty comparable to the death penalty and as such should not be imposed without taking into account mitigating evidence as is required in death penalty cases.  (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 445, 134 Cal.Rptr. 650, 556 P.2d 1101.)   We find defendant's assertion to be without merit.

First, defendant's argument completely overlooks the existence of Penal Code section 190.3 which specifically provides that aggravating and mitigating circumstances shall be taken into account by the trier of fact in determining the penalty to be imposed on a defendant found guilty under Penal Code section 190.2 of first degree murder where special circumstance allegations have been charged and found to be true.

Section 190.3 of the Penal Code provides in its relevant part that evidence may be presented at the penalty stage of the proceedings “as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition.”   Furthermore, the duty of the trier of fact in fixing punishment under Penal Code section 190.3 can only be exercised by taking into account aggravating and mitigating circumstances since section 190.3 provides that the death sentence is to be imposed if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances, whereas life imprisonment without possibility of parole is to be imposed if the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances.

 The ultimate test of unconstitutionality which must appear “ ‘clearly, positively, and unmistakably’ ” (People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001) is whether the punishment prescribed “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”   (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   For reasons discussed below, we conclude that the penalty of life imprisonment without possibility of parole is not so “disproportionate” to the crime of premeditated and deliberate murder committed during the course of a robbery as to constitute cruel and unusual punishment.⁹

 We point out that the Legislature is accorded the broadest discretion possible in enacting penal statutes and in specifying punishment for crime (People v. Anderson (1972) 6 Cal.3d 628, 640, 100 Cal.Rptr. 152, 493 P.2d 880);  furthermore, the Legislature may properly limit the discretion of the trial judge by enacting mandatory provisions for punishment.   (People v. Tanner (1979) 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328;  People v. Marsh (1982) 136 Cal.App.3d 634, 649, 186 Cal.Rptr. 528.)

 The present version of Penal Code section 190.2 was added to the Penal Code by the electorate pursuant to an initiative measure “Proposition 7” which was approved by the General Election of November 7, 1978.¹⁰  Its codification evidenced an electoral intent having the force of a legislative intent to “(1) increase the penalties for first and second degree murder, (2) expand the list of special circumstances requiring a sentence of either death or life imprisonment without the possibility of parole, and (3) revise existing law relating to mitigating or aggravating circumstances.”  (People v. Noble, supra, 126 Cal.App.3d 1011, 1017, 179 Cal.Rptr. 302, quoting from the legislative analysis accompanying Proposition 7 as it appeared in the Voters' Pamphlet.)

The California Supreme Court in In re Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, articulated certain tests for determining disproportionality of punishment:  First, by examining the nature of the offense and/or the offender with particular regard to the degree of danger both present to society;  second, by comparing the challenged penalty with punishment in the same jurisdiction for different offenses which by the first test must be deemed more serious;  and third, by comparing the challenged penalty with punishment for the same offense in other jurisdictions having the same or a comparable cruel and unusual punishment constitutional provision.   (Id., at pp. 425–427, 105 Cal.Rptr. 217, 503 P.2d 921.)

Application of the Lynch criteria to the instant case supplies no basis for a finding of disproportionality of punishment.   First, the crime of murder is one of the most serious of all crimes, especially where as in this case it was carried out pursuant to a premeditated and deliberate scheme and during the perpetration of a robbery.   The seriousness of this criminal offense was tacitly acknowledged by the electorate's approval of Proposition 7 enacting Penal Code section 190.2 which requires a sentence of either death or life imprisonment without parole as punishment for those first degree murders committed while engaged in “special circumstances,” one of which is the perpetration of a robbery.

Second, a comparison of the challenged penalty with punishment provisions for comparable or more serious offenses under the California penal law does not point to disproportionality within the meaning of Lynch.   For example, the penalty for first degree murder in the absence of a finding of special circumstances is punishable by a term of 25 years to life or by life imprisonment without parole or by death.   Likewise, murder in the second degree is punishable by imprisonment for 15 years to life.  (Pen.Code, § 190.)   While these offenses are comparable to first degree murder where special circumstances have been found, they are nevertheless considered less serious and consequently, provided the minimum sentence has been completed, parole is not absolutely barred as it is in the case involving a positive finding of special circumstances.  (Pen.Code, § 190.)   Furthermore, intrastate comparisons directed by Lynch do not breach the cruel or unusual punishment clause when they serve a rationally conceived penal purpose.  (In re Maston (1973) 33 Cal.App.3d 559, 565, 109 Cal.Rptr. 164;  People v. Noble, supra, 126 Cal.App.3d 1011, 1020, 179 Cal.Rptr. 302.)   As was pointed out in the Noble case, one of the main purposes behind the enactment of Proposition 7 was to increase the penalties imposed for first degree murders committed in connection with the enumerated “special circumstances.”  (People v. Noble, supra, 126 Cal.App.3d 1011, 1017, 179 Cal.Rptr. 302.)   The penalties thus mandated are certainly rationally related to the ultimate penal purpose of deterring the targeted criminal activity.

Third, the challenged penalty is not disproportionate by standards of interstate comparisons.   As was indicated by the court in Noble, the penalty of life imprisonment without possibility of parole is widespread as a penalty for “Capital Murder” throughout the United States.  (People v. Noble, supra, 126 Cal.App.3d 1011, 1020, 179 Cal.Rptr. 302.)   Thus, there is no basis for finding California's sentence of life without parole “grossly excessive” in relation to other jurisdictions throughout the country.   As to federal standards, the United States Supreme Court is not only reluctant to review legislatively mandated terms of imprisonment (Rummel v. Estelle (1980) 445 U.S. 263, 272–274, 100 S.Ct. 1133, 1138–1139, 63 L.Ed.2d 382), but it has recognized “that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes.”  (Lockett v. Ohio (1978) 438 U.S. 586, 604–605, 98 S.Ct. 2954, 2964–2965, 57 L.Ed.2d 973;  see also People v. Noble, supra, 126 Cal.App.3d 1011, 1021, 179 Cal.Rptr. 302.)

In view of the above, we conclude that the penalty of life imprisonment without parole for the crime of premeditated and deliberate murder committed during the course of a robbery is not “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity” under Lynch as to constitute cruel and unusual punishment.

Judgment affirmed.

FOOTNOTES

FOOTNOTE.  

2.   The jury was unable to reach a unanimous verdict as to whether the penalty should be the death sentence or life imprisonment without possibility of parole.   The sentence was therefore imposed by court in accordance with Penal Code section 190.4, subdivision (b).

5.   Because defendant was convicted of first degree murder where the special circumstances alleged were found to be true, defendant's punishment was either the death penalty or life imprisonment without possibility of parole.  (Pen.Code, § 190.2.)   Absent a showing of good cause, the same trier of fact deciding the issue of guilt of a crime punishable by death must decide the penalty to be imposed.  (Pen.Code, § 190.4, subd. (c).)  This legislative preference for using the same trier of fact for both the guilt and penalty phases of the trial has been upheld against constitutional attack by the California Supreme Court.  (People v. Gonzales (1967) 66 Cal.2d 482, 498, 50 Cal.Rptr. 361, 426 P.2d 929.)

6.   Witherspoon held that a death sentence could not be executed if the sentencing jury was selected by excluding for cause veniremen who simply voiced “general objections” or scruples against imposing the death penalty.   In so holding, the court explicitly stated that its decision did not affect the power of a state to execute the death penalty where “the only veniremen excluded for cause were those who made unmistakably clear (1) 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, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.”  (Witherspoon v. Illinois, supra, 391 U.S. 510, 522, fn. 21, 88 S.Ct. 1770, 1777, n. 21, 20 L.Ed.2d 776.)   The prospective jurors excluded in the instant case fall within the first Witherspoon category above quoted.

7.   Under Rubio a group is “cognizable” for purposes of the representative cross-section rule if:  (1) “its members share a common perspective arising from their life experience in the group,” and (2) “no other members of the community are capable of adequately representing the perspective of the group assertedly excluded.”  (Rubio v. Superior Court (1979) 24 Cal.3d 93, 98, 154 Cal.Rptr. 734, 593 P.2d 595.)

8.   Penal Code section 190.2 provides that the penalty for a defendant found guilty of first degree murder where the jury has also specifically found the alleged special circumstances to be true “shall be death or confinement in state prison for a term of life without the possibility of parole.”   As was noted earlier, the sentence of life imprisonment without the possibility of parole was imposed by the court as mandated by Penal Code section 190.4, subdivision (b), when the jury was unable to reach a decision as to the applicable penalty in this case.

9.   In so concluding, we note that the case under review is factually analogous to the case of People v. Noble (1981) 126 Cal.App.3d 1011, 179 Cal.Rptr. 302, holding that the imposition of life imprisonment without parole was not cruel and unusual punishment where defendant was convicted of first degree murder in which the victim was a police officer who had been killed in retaliation for the performance of his duties, another of the enumerated special circumstances proscribed by Penal Code section 190.2, subdivision (a)(7).

10.   Proposition 7 also modified existing Penal Code sections 190, 190.1, 190.3, 190.4 and 190.5, by increasing penalties for first and second degree murder.

 TROTTER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

MORRIS, P.J., and McDANIEL, J., concur.