Robert O. Gilmore, Jr. v. People of the State of California

This is the second appeal in this hab-eas corpus proceeding. Gilmore v. People, 9 Cir., 1966, 364 F.2d 916 . We do not repeat the facts there stated. Our remand was for a hearing, “limited to those allegations that relate to the voluntary character of Gilmore’s plea” of guilty.

On remand, the judge appointed counsel and held an evidentiary hearing. Gilmore testified in support of his allegations, and his trial counsel categorically denied them. The judge believed her in stead of him, and denied relief. We affirm. The judge’s conclusion is clearly justified by the evidence.

Gilmore also presents certain new arguments, based upon cases decided after our previous decision. First he claims that the California kidnapping statute (Calif.Pen.C. § 209) is unconstitutional, citing United States v. Jackson, 1968, 390 U.S. 570 , 88 S.Ct. 1209 , 20 L.Ed.2d 138 . Jackson held the death penalty provisions of the federal kidnapping statute ( 18 U.S.C. § 1201 (a)) invalid because only the jury could impose the extreme penalty. An accused who was willing to be tried by a court could not be sentenced to death, whereas an accused who insisted on his constitutional right to a jury trial faced the…