Howk

Bertrand Joseph Howk, Jr., also known as Mohammed Abdullah, and hereafter referred to as Abdullah, and Martin Horowitz, were jointly charged with the murder on July 13,1960, of Sonja Lillian Hoff. Abdullah pleaded not guilty and not guilty by reason of insanity, but voluntarily withdrew the insanity plea prior to trial. Horowitz pleaded not guilty. The cases were consolidated, and the defendants were jointly tried. The jury found Abdullah guilty of murder of the first degree and found Horowitz guilty of the included offense of involuntary manslaughter. The same jury determined that as to Abdullah the penalty should be death. Abdullah moved for a new trial, or, in the alternative, for a reduction of the penalty. Both motions were denied. Judgments were entered in accordance with the verdicts. Both defendants filed notices of appeal. In addition, the appeal of Abdullah is automatically before this court under the provisions of section 1239, subdivision (b), of the Penal Code. The appeals have been consolidated.

Appeal op Abdullah

A. The guilt phase of the trial.

On the guilt issue, as to Abdullah, the public defender, the defense counsel, fairly and properly concedes:

“A close…

I concur in the judgment and in the opinion supporting it, subject to this limitation as to its approval of People v. Purvis (1961), ante, p. 93 [ 13 Cal.Rptr. 801 , 362 P.2d 713 ] : For the reasons and to the ends explained in my concurring and dissenting opinion in the Purvis case (see ante, p. 99). I do not agree that the majority opinion in that case provides adequately accurate or helpful guidance to trial courts in conducting the penalty phase of a capital case.

Whether we like it or not the Legislature of this state has provided for a separate trial as to the penalty in capital cases. We cannot say that such trial shall not embrace the reception of evidence. If evidence is received it should be material to the issue, and its weight as tending to establish ultimate material facts may be argued. And since the only issue then being tried is the selection of penalty, surely the persuasiveness of those facts as they may affect the process of exercising absolute discretion in the selection of the penalty must be arguable.

As indicated in the above mentioned concurring and dissenting opinion in Purvis I think this court should more adequately define (for the guidance of court…