Hines

In this capital ease, in which defendant entered a plea of guilty of murder in the first degree and in which the jury fixed the penalty at death, we reverse the judgment insofar as it relates to the penalty. The instructions and the prosecutor’s argument in the penalty trial gave rise to the errors which we condemned in People v. Morse (1964) 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 ] ; these errors, we find, were substantial. Because of the nature of the penalty trial, any substantial error, as we explain, causes prejudice. We reject, however, defendant’s contention that he suffered denial of both his right to a trial on the sanity issue and to a public trial. Nor do we sustain defendant’s contentions as to errors in the instructions, although we agree with his position that the tape recordings of his confession, which included his account of prior crimes, should not have been admitted in their unexpurgated state.

Defendant was accused by information, filed in the Superior Court of Los Angeles County, of the murder of one Billy Cooper. Defendant entered pleas of not guilty and not guilty by reason of insanity. After two continuances and a waiver of defendant’s right to be…

I concur in the affirmance of the judgment in all respects other than as to penalty, but I must dissent from the reversal on the penalty pll8iS6

In People v. Morse (1964) 60 Cal.2d 631, 636 [la]-653 [Id] [ 36 Cal.Rptr. 201 , 388 P.2d 33 ], we held it error to give the theretofore accepted instruction (CALJIC No. 306 rev.) on possibility of parole, pardon, or reduction of sentence by the Governor or the trial court. Obedient to the mandate of article VI, section 4%, of the California Constitution, 1 we then made “an examination of the entire cause, including the evidence,’’ in order to determine whether that error, on the totality of the record of that case, resulted in a miscarriage of justice. Our reasoning and conclusion were as follows (id. at pp. 652-653 [6a] of 60 Cal.2d): *176 The court then reread the above-mentioned instruction. The jury then asked additional questions relating to the alternative death or life sentences. Thus the jury, while deliberating upon the death penalty, was aware of, and had repeated to it, the facts concerning the roles of the Adult Authority, the trial judge and the Governor. Furthermore, the trial court affirmatively instructed the jury that it…

This court held in People v. Morse, 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 ], that it is no longer proper for the trial court to instruct the jury, or for the prosecution to argue to the jury, that a defendant sentenced to life imprisonment may be eligible for parole at the expiration of seven years. Because of that holding and my conviction that the law as established by the decisions of this court must ordinarily be followed, I feel obliged to concur in the holding that the instruction and argument-here under consideration were erroneous.

However, under the decisions of this court, it was settled prior to our holding in Morse that such an instruction and argument were proper, and, in my opinion, under the doctrine of stare decisis this court should have continued to so hold. Accordingly, I dissented in Morse to reversal of the judgment insofar as it related to the penalty.

The doctrine of stare decisis is recognized by the Code of Civil Procedure, which states, in the title dealing with the kinds and degrees of evidence, that the law “collected” from the reports-of decisions of the courts is unwritten law, as distinguished from that which is formally promulgated and…

I concur in the views expressed by Mr. Justice Schauer relative to the applicability of article VI, section 4%, of the California Constitution.