In Re Imbler

61 Cal.2d 556 (1964) 393 P.2d 687 39 Cal. Rptr. 375 In re PAUL KERN IMBLER on Habeas Corpus.

Docket No. Crim. 7781. Supreme Court of California. In Bank.

July 14, 1964. [557] Gregory S. Stout, under appointment by the Supreme Court, and Jules C. Goldstone for Petitioner.

Earl Klein as Amicus Curiae on behalf of Petitioner.

Stanley Mosk, Attorney General, Albert W. Harris, Jr., Robert R. Granucci and John F. Kraetzer, Deputy Attorneys General, for Respondent.

TRAYNOR, J.

A jury convicted petitioner of first degree murder and fixed his penalty at death. We affirmed the judgment (People v. Imbler, 57 Cal.2d 711 [21 Cal. Rptr. 568, 371 P.2d 304]) and thereafter denied a petition for a writ of habeas corpus challenging the determination of petitioner's guilt. (In re Imbler, 60 Cal.2d 554 [35 Cal. Rptr. 293, 387 P.2d 6].) Petitioner now contends that his penalty should be redetermined because the errors condemned in People v. Morse, 60 Cal.2d 631 [36 Cal. Rptr. 201, 388 P.2d 33], occurred during his penalty trial. [1] This issue is properly raised on habeas corpus. (In re Jackson, ante, p. 500 [39 Cal. Rptr. 220, 393 P.2d 420].)

The only evidence introduced at the penalty trial was the testimony of a former member of the California Adult Authority about the qualifications of the members of the Adult Authority, parole procedures, the factors considered in determining a prisoner's fitness for parole, and the possibility of parole for first degree murderers. The prosecuting attorney attempted to elicit from the witness testimony showing that the policies of the Adult Authority were inconsistent and that there was considerable recidivism among paroled first degree murderers.

[2] In his argument the prosecutor prefaced his remarks about the possibility of parole by stating, "The alternative punishment to the death penalty is life imprisonment, and as [558]