In Re Pike

66 Cal.2d 170 (1967) In re CHARLEY LUTHER PIKE on Habeas Corpus.

Crim. No. 9542. Supreme Court of California. In Bank.

Mar. 14, 1967. Henry A. Dietz, under appointment by the Supreme Court, for Petitioner.

Thomas C. Lynch, Attorney General, Edward P. O'Brien and Robert R. Granucci, Deputy Attorneys General, for Respondent.

TOBRINER, J.

Petitioner is under sentence of death for murder. On automatic appeal pursuant to Penal Code section 1239, subdivision (b), this court affirmed the judgment both as to guilt and penalty. (People v. Pike (1962) 58 Cal.2d 70 [22 Cal.Rptr. 664, 372 P.2d 656].) We denied a rehearing on July 27, 1962. The United States Supreme Court denied certiorari on December 17, 1962 (371 U.S. 941 [9 L.Ed.2d 277, 83 S.Ct. 324]).

[1] Petitioner urges that the judgment, insofar as it fixes the penalty at death, cannot stand in light of the decision of this court in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33]. As petitioner points out, the record discloses that the trial court instructed the jury that a defendant serving a life sentence could be paroled after he had served seven years and that he could be pardoned or obtain a reduction of his sentence by the Governor. [fn. 1][172]

We held in Morse that such instructions may convert the jury's statutory duty of deciding between life imprisonment and death into choosing between a specified number of years of incarceration and death. The vice, indeed, strikes deeper, because, as we explained in Morse, the reference to years of imprisonment invites the jury into an abortive speculation as to the possible duration of the imprisonment. In turn, this preoccupation of the jury may lead it to attempt to predetermine and to prejudge the action of the Adult Authority, whose duty it is to fix the defendant's term in light of his subsequent and realistic rehabilitation, if such rehabilitation occurs.

In this case the adulteration of the jury's function became more pronounced because the judge told the jury that, in substance, the ultimate decision as to the penalty rested with the Governor. Hence, instead of assuming full responsibility for the stern and awesome duty of deciding between life and death, the jury labored under the instruction that a death penalty was subject to further limitation by the executive power.