Gibson

JEFFERSON (Bernard), J.

Defendant Isaac Ike Gibson was charged by information with the murder of Donald Rufus Truelove, in violation of Penal Code section 187. He entered a plea of not guilty. Trial was by jury, and defendant was convicted of second degree murder. Probation was denied, and defendant was sentenced to imprisonment in the state prison for the term prescribed by law. He appeals from the judgment of conviction and, also, the sentence. [1]

The facts presented at trial show that on Sunday, April 28, 1974, three persons were occupying the premises at 586 East 9th Street in Pomona, California: defendant, his sometime girlfriend, Evelyn Hanson, [2] and Harry Pigg, a 57-year-old invalid confined for the most part to a wheelchair. All were part of what was termed at trial an "alcoholic subculture."

Evelyn Hanson testified that on the day in question, she and the others arose at between 8 and 9 a.m. They had been drinking the night before, and wished to continue; a search was made for funds to finance more alcohol but not enough cash could be found.

Shortly before noon, the victim, Truelove, arrived at the house by cab. According to Harry Pigg, Truelove said he…

*123 Opinion

Defendant Isaac Ike Gibson was charged by information with the murder of Donald Rufus Truelove, in violation of Penal Code section 187. He entered a plea of not guilty. Trial was by jury, and defendant was convicted of second degree murder. Probation was denied, and defendant was sentenced to imprisonment in the state prison for the term prescribed by law. He appeals from the judgment of conviction and, also, the sentence.

The facts presented at trial show that on Sunday, April 28, 1974, three persons were occupying the premises at 586 East 9th Street in Pomona, California: defendant, his sometime girlfriend, Evelyn Hanson, 2 and Harry Pigg, a 57-year-old invalid confined for the most part to a wheelchair. All were part of what was termed at trial an “alcoholic subculture.”

Evelyn Hanson testified that on the day in question, she and the others arose at between 8 and 9 a.m. They had been drinking the night before, and wished to continue; a search was made for funds to finance more alcohol but not enough cash could be found.

Shortly before noon, the victim, Truelove, arrived at the house by cab.. According to Harry Pigg, Truelove said he had $23 and brought beer…

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…