appeal from a sentence may be treated as an appeal from a judgment of conviction under former Cal. Penal Code § 1237
How later courts described this case
- appeal from a sentence may be treated as an appeal from a judgment of conviction under former Cal. Penal Code § 1237
Written by the judges who cited it.
The opinion
DUNN, J.
I concur in a reversal based upon the inadmissibility of the evidence of defendant’s prior criminal acts.
*138 However, I do not find any basis for reversal in the admission of photographic exhibits 1 and 7. Although their admittance may have been erroneous, it was not prejudicially erroneous. Exhibits 1 and 7 show the dead man lying with his eyes open, apparently in the position in which defendant left him when, leaving Pigg and Hanson in the victim’s presence, defendant went into the bedroom and then into the kitchen. Photographic exhibits 8 and 4 are just as gruesome, if not more so.
There is a further reason for rejecting the photographic exhibits as being prejudicial. Thus, the majority opinion states that “The People Claim, incorrectly, that no trial objection was made to their introduction ....” This statement is only partially true. Thus, at a hearing taking place October 17, 1974, out of the jury’s presence, the trial court, conducting a pretrial review of the photographic exhibits, asked if there were any objections to exhibits 1 and 7. Defendant’s counsel objected, stating the photographs were merely cumulative. The prosecutor stated that “The purpose of No. 1 would be to show the swollen jaw area. This was one of the primary causes of death. I think the coroner will testify that decedent’s jaw was broken and teeth were forciably [¿7c] knocked out, and this was the cause of the bleeding which resulted in the decedent’s death .... People’s 1 shows merely a closeup of the swollen jaw area, indicating what the coroner will testify to be as a broken jaw. Thereafter, the trial judge ruled the exhibits to be relevant, admitted them and stated that, with respect to People’s exhibits 1 through 22, counsel were prepared to stipulate such exhibits could be received in evidence, “subject to any further objections as to relevancy or materiality, but without any further foundation.” Defense counsel and the prosecutor so stipulated.
After the trial began, the photographic exhibits (including 1 and 7) were offered and received. After a recess, given on defense counsel’s request in order to review the exhibits, the court inquired, “Any objection to any of the People’s exhibits?” and defense counsel replied “No, Your Honor.”
In the face of the statements by defense counsel, the trial court well may have concluded that, if there were any initial objection to exhibits 1 and 7, the same had been waived.
Under the foregoing circumstances, I would not reverse because of any claimed prejudicial error in the admittance of photographic exhibits 1 and 7.
Respondent’s petition for a hearing by the Supreme Court was denied May 19, 1976. Clark, J., was of the opinion that the petition should be granted.