In re Pike

I dissent from the reversal of the judgment

imposing the death penalty. Prom my examination of the entire cause (as mandated by section 13 of article VI of the California Constitution ) I am not of the opinion that it is *175 reasonably probable that a result more favorable to the defendant would have been reached in the absence of the errors set forth in the majority opinion. (See People v. Watson, 46 Cal.2d 818, 836 [ 299 P.2d 243 ], and the dissents in People v. Luker, 63 Cal.2d 464, 479 [ 47 Cal.Rptr. 209 , 407 P.2d 9 ]; In re Spencer, 63 Cal.2d 400, 414 [ 46 Cal.Rptr. 753 , 406 P.2d 33 ]; In re Gaines, 63 Cal.2d 234, 240 [ 45 Cal.Rptr. 865 , 404 P.2d 473 ] ; People v. Hillery, 62 Cal.2d 692, 714 [ 44 Cal.Rptr. 30 , 401 P.2d 382 ] ; In re Lessard, 62 Cal.2d 497, 513 [ 42 Cal.Rptr. 583 , 399 P.2d 39 ] ; and People v. Terry, 57 Cal.2d 538, 569, 572 [ 21 Cal.Rptr. 185 , 370 P.2d 985 ].) In all other respects I concur in the opinion of the majority.

McComb, J., concurred.

Petitioner is under sentence of death for murder. On automatic appeal pursuant to Penal Code section 1239, subdivision (b), this court affirmed the judgment both as to guilt and penalty. (People v. Pike (1962) 58 Cal.2d 70 [ 22 Cal.Rptr. 664 , 372 P.2d 656 ].) We denied a rehearing on July 27, 1962. The United States Supreme Court denied certiorari on December 17,1962 ( 371 U.S. 941 [ 9 L.Ed.2d 277 , 83 S.Ct. 324 ]).

Petitioner urges that the judgment, insofar as it fixes the penalty at death, cannot stand in light of the decision of this court in People v. Morse (1964) 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 ]. As petitioner points out, the record discloses that the trial court instructed the jury that a defendant serving a life sentence could be paroled after he had served seven years and that he could be pardoned or obtain a reduction of his sentence by the Governor. 1

*172 We held in Morse that such instructions may convert the jury’s statutory duty of deciding between life imprisonment and death into choosing between a specified number of years of incarceration and death. The vice, indeed, strikes deeper, because, as we explained in Morse , the reference to years of…