People v. Mitchell

This is an automatic appeal, pursuant to section 1239, subdivision (b), of the Penal Code, from a judgment, after trial before a jury, finding defendant guilty of murder in the first degree and imposing the death penalty.

*356 Facts-. The Stadium Club, the scene of the crime, is a bar and restaurant in Sacramento. Defendant appeared at the club at approximately 10:30 p.m. on February 15, 1963. About this time an employee took some meat scraps to a grease barrel at the rear of the premises, and observed defendant looking into the restroom windows. Defendant pointed a sawed-off shotgun at the employee, asking who he was, what he was doing there, and the name of the manager of the club. He was informed that the place was managed by Jack and Eddie Licciardo. Upon inquiry, defendant was informed that a walk-in ice box was on the premises, and he also learned the location of the office safe.

Defendant then ordered the employee to enter the premises, defendant following with the sawed-off shotgun against the employee’s back. Upon entering the back door, defendant halted momentarily for the purpose of placing a mask over his face. They then proceeded through the porch area of the…

Concurring and Dissenting.—In my view, the record at bench shows procedural error of the type, but not the salience, defined and denounced in People v. Morse (1964) 60 Cal.2d 631, 649-653 [6a] [ 36 Cal.Rptr. 201 , 388 P.2d 33 ] and in People v. Linden (1959) 52 Cal.2d 1, 27 [26b, 32] [ 338 P.2d 397 ]; see also id. at p. 28 [33]. More specifically, the error here is not shown to be aggravated by circumstances of the character or significance delineated in the Morse decision.

In Morse , it was only by appraising the significance and projecting the probable effect of those circumstances in relation to the otherwise presumably harmless factual matters of common knowledge recounted to the jury by way of instruction, that we found cause for reversal. We carefully defined that cause and our decision within the constitutional ambit (p. 653 [6a] of 60 Cal.2d) as follows: “after examination of the entire cause, including the evidence, we are of the opinion that it is reasonably probable that a result more favorable to defendant as to penalty would have been reached in the absence of the error.” (See Cal. Const., art. VI, § 4%; People v. Watson (1956) 46 Cal.2d 818, 836-837 [12] [ 299 P.2d…