People v. Green

SPENCE, J., Concurring and Dissenting.

I concur insofar as the judgment and order are affirmed, but I dissent insofar as the judgment and order are reversed.

The majority orders a partial reversal “on the question of penalty” and remands the cause “for retrial and redetermination of such question of penalty only.” Such partial reversal is based solely upon alleged prejudicial error in the giving of the instruction quoted in the majority opinion.

As recently as 1954 the same instruction was held to be “not erroneous” in People v. Byrd, 42 Cal.2d 200, 210 [ 266 P.2d 505 ], That decision was based upon a similar holding by this court in 1948 in People v. Williams, 32 Cal.2d 78, *237 85-86 [ 195 P.2d 393 ], where the entire subject was exhaustively discussed. It would thus appear that the precise question presented here has been settled by the decisions of this court, and that a wholesome regard for the doctrine of stare decisis should dictate an affirmance here.

The majority opinion, however, discusses certain erroneous statements found in some of the earlier decisions and suggests that the same “idea” is embraced in the instructions given here. Such is not the case. This suggestion might be urged more plausibly with respect to the instruction given in People v. Lindley, 26 Cal.2d 780, 794 [ 161 P.2d 227 ], which contained further and broader language indicating that the jury might leave to the law “the responsibility of affixing the punishment.” In that case Mr. Justice Schauer joined the majority in holding that the giving of such broader instruction “does not constitute error.” There was no dissent in that ease. Mr. Justice Traynor wrote a special concurring opinion but joined in affirming the judgment. No language similar to the above-quoted language of the Lindley instruction is found in the challenged instruction here. On the contrary, the challenged instruction is the identical instruction which was given in People v. Byrd, supra, 42 Cal.2d 200, 210 , and which was approved by this court only two years ago.

It would serve no useful purpose to review all the eases cited in the majority opinion. Any erroneous statements in the earlier cases which may have indicated that the jury was not required to agree unanimously upon the punishment were finally set at rest in 1926 by the opinion written by Mr. Justice Shenk in People v. Hall, 199 Cal. 451 [ 249 P. 859 ]. The jury there brought in a verdict finding the defendant guilty of murder in the first degree but added “But cannot come to an unanimous agreement as to degree of punishment.” The trial court received the verdict and sentenced the defendant to suffer the death penalty. This court properly reversed the judgment, holding that the jury must agree unanimously upon the punishment. No subsequent decision has contained any language indicating that a jury is not required so to agree, and no such point is urged by respondent here. In fact, it is conceded by all that the jury did unanimously agree upon the verdict, which expressly provided for the death penalty.

Therefore the matter for decision here is not whether the language contained in some of the earlier cases and relating *238 to a different problem, should be overruled or disapproved, but whether the decisions of this court involving precisely the same problem should be followed. The basic question, which is one of statutory construction, may be stated as follows : Should the jury be instructed in effect that it has an absolute and unbridled discretion in fixing the punishment for first degree murder or should it be instructed that its discretion is a legal discretion which may not be arbitrarily exercised? In other words, should or should not the jury be instructed that the choice of the penalty should depend upon whether the jury finds “extenuating facts and circumstances” in the particular case? If the question were an open one, a plausible argument could be made for either construction. But the question is not an open one, at least with respect to the propriety of the particular instruction given here, and I find no sound reason for overruling our recent decision in People v. Byrd, supra, 42 Cal.2d 200 . It is significant that the instruction given here appears to embrace only the considerations which would influence the decision of any reasonable juror in fixing the penalty, and that the broad implications of the term “extenuating facts or circumstances” allow a wide range for the exercise of the juror’s discretion. I am therefore of the opinion that upon reason and authority, there was no error in the giving of the challenged instruction.

I would affirm in tolo the judgment and order denying a new trial.

Gibson, C. J., and Shenk, J., concurred.

The petitions of appellant and of respondent for a rehearing were denied November 14, 1956. Gibson, C. J., Shenk, J., and Spence, J., were of the opinion that the petitions should be granted.