# People v. Modesto > California Supreme Court · February 11, 1965 · 62 Cal. 2d 436 URL: https://www.frixlaw.com/law-library/cases/9549143 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. LAWRENCE GLENN MODESTO, Defendant and Appellant - **Court:** California Supreme Court - **Decided:** February 11, 1965 - **Citations:** 62 Cal. 2d 436; 42 Cal. Rptr. 417; 398 P.2d 753; 1965 Cal. LEXIS 262 - **Precedential status:** Published - **Opinion:** Concurring in part by Schauer - **Judges:** Traynor, Peters, Schauer - **Cited by:** 97 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9549143 ## Opinion text SCHAUER, J., * Concurring and Dissenting. I concur in those portions of the majority opinion which resolve the issue grounded on the California comment rule (Cal. Const., art I, § 13). Specifically, I agree with the discussion and conclusions of the Chief Justice relative to the applicability and effect of Malloy v. Hogan (1964) 378 U.S. 1 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 ], and upholding the good sense and constitutional vitality of the subject rule. To suggest that reasonable inferences will not or should not be drawn by the fact finder from the failure of an accused to testify as to matters obviously within his knowledge is absurd. Common sense tells us that in such a situation the inferences will be adverse to the defendant if no comment— i.e., no instruction—is given relative to the right of an accused to stand on his plea of not guilty and the comprehensive burden of the state to prove every element of guilt beyond a reasonable doubt. The California comment rule operates constructively to make real and workable to a conscientious fact finder the right of the accused and the burden of the prosecution. The use of the comment rule in defendant’s trial was not only constitutionally permissible, it was good sense and eminently fair. When there is neither relevant court instruction nor any reference by court or counsel to defendant’s silence in the face of obvious and significant evidence of guilt, *465 the impact of the silence on the jury will more likely intensify than diminish the force of the positive evidence. Conscientious and intelligent jurors are curious jurors; they yearn for full instructions covering their duty in resolving every issue before them. The subject California rule is not so much a comment rule as it is an instruction as to law and a caution as to duty: it emphasizes the burden of the prosecution to prove beyond reasonable doubt every essential element of the crime charged; it makes altogether clear the right of the defendant not to testify at al 1 and not to be prejudiced by his own mere silence; it precludes the jury from drawing any inference adverse to the defendant because of his decision not to testify unless it is further shown that defendant has knowledge of, and the ability to produce, facts which could deny or explain, or in some way obviate the effect of, evidence which if believed, would establish guilt. The rule is essentially correlative both to defendant’s fundamental right of silence and to the state’s burden of proof; it becomes operative only when competent evidence has been adduced which is sufficient to establish (1) a prima facie ease against the accused, and (2) his ability to furnish exculpatory evidence. Then the necessity for, and the fairness of, the rule become obvious. The comment itself must be hypothetically definitive and explanatory of the rule and its application. Certainly as held by the majority such 11 carefully circumscribed comment does not conflict with the policies of the federal privilege against self-incrimination. ” Failure to comment at all on the obvious facts, or on the other extreme, categorically directing the jurors not to draw inferences which the undisputed evidence and a sound mind dictate, would be futile and would tend to make a mockery of the fact finding process. We are bound to recognize that the essential function of jurors is to draw (or resolve conflicting) inferences from all material circumstances. The failure of a defendant to testify relative to tentatively established incriminating facts which are peculiarly within his knowledge is in itself a fact which, as hereinabove suggested, may become the more portentous if comment thereon, as required and limited by the California rule, is precluded. As the Chief Justice says, “The defendant . . . is normally faced with the choice of testifying to avoid adverse inferences or of remaining silent and suffering their consequences.” The purpose of a fair trial is to discover the truth and upon the truth to render the judgment provided *466 by law. A fair trial cannot be had in an intellectual vacuum; and a fair trial—of course, but it bears emphasis—must be equally concerned with fairness to the whole body politic as well as to the defendant. I do not concur in the eonclusional declaration that “With respect to defendant’s last and most complete and damaging statements, all of the conditions of the Escobedo holding were met. . . . Accordingly, the judgment must be reversed.” I am not persuaded that the hypothesis is tenable or that this result must follow. What may be “most . . . damaging statements” is typically for jury and trial judge appraisal. And as I read the Escobedo opinion I am impressed with the conclusion that Mr. Justice Goldberg diligently sought to confine its application to the ease he defined and decided. I would limit its reach by the aggregate—not by a selected item or items—of the congeries of facts which he so painstakingly assembled and by multiple reiterations emphasizes. As demonstrated to my satisfaction by Justice Burke in his dissenting opinion in People v. Dorado (1965) ante, pp. 338, 364 [ 41 Cal.Rptr. 169 , 398 P.2d 361 ], the recited facts of that case clearly show that the majority ruling therein was not compelled by Escobedo. To the contrary, as hereinafter documented, Dorado appears to me to extend the scope of Escobedo in an area forbidden to us by the California Constitution. I agree with Chief Justice Traynor that Massiah v. United States (1964) 377 U.S. 201 [ 84 S.Ct. 1199 , 12 L.Ed.2d 246 ], is not controlling here, but I note also a related statement which on its face might appear to be a speculative or advisory ruling relative to a question of law and fact which may or may not arise on the third trial of the case at bench. The proposition is stated by the majority as follows: “The statements made between the time Connie’s body was found and the time defendant sought to consult again with his attorney present still a different problem. Under our holding in People v. Dorado, ante, p. 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], these statements are inadmissible unless as to them defendant waived his right to counsel and his right to remain silent. In view of his reference to his attorney’s advice with respect to making these statements, it is possible that defendant waived his rights as to them. That reference was ambiguous at best, however, and unless the prosecution can present additional evidence of waiver on retrial, these statements should be excluded.” The metage of inferences which may be drawn from the myriad cumulant circumstances of a trial is both primarily and distinctively a trial *467 judge’s function. It is only upon the complete absence of tenable inferences supportive of the trial court’s ruling that we should disturb a judgment in this respect. I do not find myself sufficiently qualified by the record of the second trial now before us to rule for the next trial that “unless the prosecution can present additional evidence of waiver . . . the statements should be excluded.” In the case at bench I find no error in their admission. I agree with Chief Justice Traynor that on any tenable view of the law “The statements made by defendant before Connie’s body was discovered are admissible” and that “there is no basis for their exclusion.” These statements alone (i.e., excluding from consideration all other statements by defendant), when considered with the other probative evidence which was properly received, in my view amply support the judgment of the trial court. I also agree that “In the present ease the officers’ investigatory and rescue operations were necessarily inextricably interwoven until Connie’s body was found, and it would be needlessly restrictive to exclude any evidence lawfully obtained during the rescue operations. Under these circumstances we do not believe that the Massiah case is controlling. ’ ’ Although, as above shown, I am in full accord with much of the discussion by the Chief Justice, and with a number of his important conclusions, I cannot agree that the judgment must or should be again reversed. It becomes necessary to again refer to what I understand to be the duty unequivocally imposed upon this court by the Constitution of California which grants—and specifically limits—our jurisdiction in the review of “criminal eases where judgment of death has been rendered. ’ ’ I have reference to sections 4 1 and 4%, 2 article VI. I know of no power possessed by this court other than such as is granted to it by the people of the state in the Constitution of California. (Manifestly the grant of state power does not come from the United States Constitution or *468 the judgment of a federal court.) That same grantor, in the same document, also expressly delimits our power in the specific area which is relevant. That limitation, it appears to me, is transgressed by the recent majority decision in People v. Dorado (1965) supra, ante, p. 338, as is indicated by the dissents of both Mr. Justice McComb and Mr. Justice Burke. I have no quarrel with the forthright narration of facts in the majority opinion of the case at bench. Among other things the majority candidly state “It is not disputed that defendant killed the two girls.” I add that on any reasonable view of the evidence it is not disputable that the evidence sustains the jury’s implied findings at both the first trial and at the second trial that the object of the two murders was to accomplish the rape of Connie. I cannot find anything in this record which justifies the conclusion of fact or of law that either the conviction of defendant or the sentence of death pronounced thereon constitutes a miscarriage of justice. Indubitably it is our- duty to be concerned with the philosophy as well as the letter of criminal law. Of course our system is not a perfect one. It is not yet given to human beings to create a society perfectly motivated or governed. Men of goodwill may differ sharply in selecting the means to an end, if not as to the objective itself. The ever increasing number in recent years of reversals on technical grounds of judgments in major criminal cases suggests the need for reexamination of the incidents of our philosophy and of our procedures. Are we to abandon or continue to recognize the theory that as between mankind and the lower animals there is a major difference in social responsibility? Are we to continue or abandon the theory that human beings are free moral agents? That those who fail to be restrained by moral concepts may nevertheless be deterred away from, or influenced toward, a given course of conduct by punishment on the one hand or reward on the other ? In our organized society today, should the courts, as perhaps the chief instrumentality for attaining its elementary objectives, be primarily concerned with protecting the crime perpetrating nonconformist, not merely in the heretofore recognized constitutional rights of law abiding members, but, as against execution of penal sanctions for demonstrated guilt, in revising procedural rules and applying the revisions retroactively for the benefit of the accused? Or should we give our first concern to protecting law abiding members of that society by firm and prompt enforcement of tenable rules of law as against the rapist- *469 murderers and similar types of criminal nonconformists? Certainly even the most evil one shall have his due process and fair trial. This defendant has enjoyed these benefits twice over. The sledge hammer slayings of Connie Mack and Mary Mack cannot be undone. But sure, prompt and unrelenting exaction of the penalty of the law could serve to save other innocents from similar deaths. If this philosophy is wrong then it would seem that our entire penal-sanetionfor-erime system of law should be abandoned. But until a better system has been provided let us not destroy or further deplete the efficacy of the one we have. For the reasons sufficiently articulated in my dissent in People v. Modesto (1963) 59 Cal.2d 722, 735 [ 31 Cal.Rptr. 225 , 382 P.2d 33 ], I could not then concur in reversing the judgment on the prior appeal. The reversing justices made no finding that it was more probable than not that a verdict more favorable to the defendant would have resulted in the absence of the then declared error. The reversal therefore, as I understand the language of, and respect due, our Constitution, was, and today’s is, in excess of this court’s appellate jurisdiction as exclusively granted and specifically limited by sections 4 and 4%, article VI, California Constitution (see fns. 1 and 2, ante, p. 467). I think it is fair also to add that the reversals of the judgments, both on this appeal and the preceding one, appear to be due not to any incompetence or neglect or mistakes of the investigating or prosecuting officers, or of the trial judges. The reversals have come because courts of appellate jurisdiction have seen fit, or felt compelled, to change the rules governing relevant procedures and to make the changes retroactively effective. If the compulsion for retroactive application is not absolute it should not be indulged. The people of California, as well as this defendant, have a right to due process and fair law enforcement. Among the people who are punished most severely by the new trials are, of course, the family members of the murdered little girls. It appears to me that the proceedings on, and the results of, the second trial, as illumined also by the record of the first trial, demonstrate that there has been no miscarriage of justice in the trial court. For all the reasons hereinabove stated I would affirm the judgment. McComb, J., concurred. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council. California Constitution, article VI, section 4: “The Supreme Court shall have appellate jurisdiction ... on questions of law alone, in all criminal cases where judgment of death has been rendered; ...” (Italics added.) California Constitution, article VI, section 4%: “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. ’ ’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9549143. Public record. Not legal advice.