THE PEOPLE, Plaintiff and Respondent, v. ALBERT ERNEST LOVE, Defendant and Appellant, 56 Cal. 2d 720

TRAYNOR, J. For the third time a jury has fixed defendant’s penalty at death for the murder of his wife. He was first tried in 1958. The jury found him guilty hut could not agree on the penalty. A second jury fixed the penalty at death; but the trial court granted a new trial on the ground of newly discovered evidence, and we affirmed. (People v. Love, 51 Cal.2d 751 [336 P.2d 169].) Defendant was again tried in 1959 and found guilty of murder in the first degree ; again the jury fixed the penalty at death.

We affirmed the judgment as to the adjudication that defendant is guilty of murder of the first degree and was sane at the time of the commission of the offense. We reversed the judgment as to the imposition of the death penalty because of the admission of evidence tending to inñame and prejudice the jury. (People v. Love, 53 Cal.2d 843 [350 P.2d 705].) Upon retrial of the issue of penalty, defendant discharged his attorneys and conducted his own defense. The court cautioned him not to waive counsel; but defendant insisted on defending himself. The jury again fixed the penalty at death.

This appeal from the judgment entered on the jury verdict is automatic. (Pen. Code, § 1239, subd. (b).) Defendant contends that the trial court denied him due process by permitting the prosecutor to open and close the penalty trial and the argument to the jury. This procedure was expressly approved in People v. Corwin, 52 Cal.2d 404, 407 [340 P.2d 626]. That ease governs here, even though a new jury was selected to consider the penalty. (People v.

Gonzalez, ante, pp. 317, 319 [14 Cal.Rptr. 639, 363 P.2d 871].) Defendant cannot reopen the question of his sanity at the time of the commission of the offense, for the judgment on the issue of insanity was affirmed in People v. Love, supra, 53 Cal.2d 843, 858. The court did not err in dismissing defendant’s subpoena for Governor Brown and Warden Duffy. Defendant voluntarily dismissed the subpoena for Warden Duffy. He had subpoenaed Governor Brown to elicit his views on capital punishment. The penalties for first degree murder have been fixed by the Legislature. (Pen.

Code, § 190.) The wisdom of deterrent effect of those penalties are for the Legislature to determine and are therefore not justiciable issues. Hence evidence as to these matters is inadmissible. Juries in capital cases cannot become legislatures acl hoc, and trials on the issue of penalty cannot be converted into legislative hearings. The court did not err in denying a change of venue. An application for change of venue is addressed to the sound discretion of the trial court. (People v. Burwell, 44 Cal.2d 16, 30 [279 P.2d 744].) There has been no showing of abuse of discretion.

The court did not err in excusing prospective jurors conscientiously opposed to capital punishment. (People v. Riser, 47 Cal.2d 566, 575-576 [305 P.2d 1].) During the selection of the jury both sides “passed” the jury as presently constituted. Thereafter, both the prosecutor and the defendant continued to exercise peremptory challenges. There was no objection to their doing so, and defendant could not have been prejudiced thereby. Defendant objects to the introduction of two colored photographs of the victim. In People v.

Love, supra, 53 Cal.2d at pages 852-853, we stated “ [t] he photographs in the present case were not exceptionally gruesome. . . . The photographs tend to prove how the shooting occurred and corroborate evidence that defendant intentionally held the gun close to his wife’s body to avoid injuring others.” These facts are relevant to punishment as well as to guilt. (People v.

Jones, 52 Cal.2d 636, 647 [343 P.2d 577].) Defendant contends that the court erroneously admitted evidence and erroneously instructed the jury on the average time between conviction and parole of prisoners serving a life sentence for first degree murder. He insists that parole of prisoners differs from case to ease and that statistics on this subject are misleading. Evidence of the minimum, average and maximum terms actually being served by persons convicted of first degree murder is admissible. (People v.

Purvis, 52 Cal.2d 871, 884-885 [346 P.2d 22].) Moreover, defendant elicited all relevant testimony on the factors that influence parole and that would be considered by the Adult Authority in his case before granting him a parole. The trial court instructed the jury on the minimum period of imprisonment before defendant would be eligible for parole. It also instructed the jury that the actual period of parole depends on a number of factors including his criminal record and his behavior in prison.

The court then reviewed the evidence on the mean and median times between conviction and parole served by-prisoners sentenced to life imprisonment for first degree murder. In People v. Reese, 47 Cal.2d 112, 116-117 [301 P.2d 582], we held that a jury may be instructed on the minimum time that must be served before a prisoner will be eligible for parole; the instructions in the present ease were more favorable to defendant. Defendant contends that the trial court did not give proper consideration to his motion to reduce the penalty from death to life imprisonment.

After the jurors returned their verdict the court granted defendant a continuance to prepare his motion for a new trial. He then obtained counsel who presented the motion. They urged the court to reduce the penalty to life imprisonment on the ground that the evidence did not justify a sentence of death. The court ruled that it did not have the power to reduce the penalty and could grant a new trial only for errors of law. Defendant’s counsel, invoking People v.

Moore, 53 Cal.2d 451, 454 [348 P.2d 584], insisted that the court had the power to reduce the penalty, but the court disagreed, stating: “Well, it’s [the Moore case] a little different, apparently, apparently the remanding of the particular case was not as unlimited, not as limited as the remanding [of] this case.” The following exchange between court and counsel ensued: “Mr.

Shapiro: No, because the same issue is at stake, isn’t it, the only issue.” “The Court: Well, the conditions of the exercise of any discretion are predicated upon either an error of law, or a right on the part of the Court to recommend to the jury the sentence to be imposed, being vested by statute and I don’t find that anywhere in the Penal Code under present procedure affecting penalty trials in murder. “Mr.

Shapiro : At the time of remanding this ease, after the remand order remanding it in the Moore case, this court, the court in the Moore ease was exactly in the same position as the Court is today, I believe. ‘ ‘ The Court : It is rather hard to rationalize, but-- “Mr. Shapiro : Beg pardon 1 ‘ ‘ The Court : The decision would be there, however, in view of the fact that three juries have exercised their conscientious judgment in this regard, I can’t say that the death penalty was improper in this case. The motion for a new trial will be denied.” In People v.

Moore, supra, 53 Cal.2d 451, 454, we declared: “Although the jury in a jury trial has the exclusive power in the first instance to select the penalty for first degree murder as between death and life imprisonment [citations], this does not affect the power of a trial court, in disposing of a defendant’s motion for a new trial, to reduce the punishment from death to life imprisonment.

Based upon its own independent view of the evidence, the trial court is not only empowered to reduce the degree or class of the offense [citations] , but is also empowered to reduce the penalty imposed. ’ ’ (Italics added.) The power of the trial court to review the evidence and to reduce the penalty fixed by the jury is therefore settled. It is also settled that “ ‘. . . This court cannot substitute its judgment as to choice of punishment [citation] even where we may doubt the appropriateness of the death penalty [citations].’. . .

Only the trial court has the power to reduce the punishment originally selected by the trier of fact. ...” (People v. Rittger, 54 Cal.2d 720, 734 [355 P.2d 645].) Thus, the trial court has not only the power to reduce the penalty but the duty to review the evidence and to determine whether in its judgment the weight of the evidence supports the jury’s verdict. (People v. Borchers, 50 Cal.2d 321, 328, 330 [325 P.2d 97].) In performing that duty the trial court must “ ‘. . . judge the credibility of the witnesses, determine the probative force of the testimony and weigh the evidence. . . .’ ” (People v.

Sheran, 49 Cal.2d 101, 109 [315 P.2d 5].) It is clear from the record in this case that the trial court not only erred as to the scope of its power to reduce the penalty but also failed to give defendant’s motion the consideration required by People v. Moore, and People v. Sheran. During most of the discussion of the motion the court was of the opinion that it did not have the power to reduce the penalty. At the time of the ruling on the motion, the court still doubted that it had such power and indicated that even if it had it would not exercise that power because three juries had fixed the penalty at death.

The trial court erred in giving weight to the jury verdict that had been set aside on the grounds of newly discovered evidence and to the jury verdict that had been set aside because of the admission of prejudicial evidence. Although the court could properly consider the verdict of the jury in the present case, it could not rely on that verdict alone and thus shift its own responsibility to the jury. It had an independent responsibility to give defendant and the People the benefit of its own judgment as to whether or not the death penalty was proper.

If the only error was the failure of the trial court properly to consider defendant’s motion for a new trial, it would be appropriate to vacate the judgment and order denying the motion for new trial with directions to the trial court to reconsider the motion and to enter the appropriate judgment or order. (See People v. Moore, supra, 53 Cal.2d 451, 452.) Since it appears, however, that the prosecutor committed prejudicial misconduct in arguing the deterrent effect of the death penalty to the jury, the judgment and the order denying the motion for new trial must be reversed.

During closing arguments the prosecutor urged the jury to fix the penalty at death because such penalty would serve as a deterrent to others. The prosecutor also stated: “It is a known fact that callous, hardened criminals when they commit burglaries, robberies, breakins, rarely carry loads in their pistols. . . . [W]hen men are asked after these crimes are committed, . . . ‘you don’t keep any loads in your gun when you were arrested. Why is that?’ Do you know that these people say?

Members of the jury, they say they know that the law says that if they kill someone while they are in that robbery, or that burglary, that they will get the death penalty, and therefore thinking and reflecting on that, even while they commit their crimes, they unload their guns and as insurance against not getting the death penalty. ...

In other words if there were no death penalty, if jurors did not exercise their sound discretion in a proper case such as this and inflict it and have the courage to inflict it, it would be better for a burglar or murderer or someone committing a crime to take a chance and kill someone. . . . [Tjhey would know then that they could gamble ten to twelve years against shooting someone to escape and silencing the witness, killing the policeman, killing the clerk and getting away, but they know their life is, paltry as they are, it keeps them in line, and gives them the fear in their hearts that they are not going to murder innocent people, not because they don’t want to, but for plain good business that they might gamble ten to twelve years life imprisonment on a parole to shoot someone to kill someone, but they won’t gamble their own life.” Counsel’s summation to the jury “must be based solely upon those matters of fact of which evidence has already been introduced or of which no evidence need ever be introduced because of their notoriety as judicially noticed facts.” (6 Wigmore, Evidence (3d ed. 1940) § 1806, p. 269; accord People v.

Evans, 39 Cal.2d 242, 251 [246 P.2d 636].) He may state matters not in evidence that are common knowledge, or are illustrations drawn from common experience, history, or literature. (People v. Gingell, 211 Cal. 532, 541-542 [296 P. 70]; People v. Molina, 126 Cal. 505, 508 [59 P. 34]; People v. Scarborough, 171 Cal.App.2d 186, 190 [340 P.2d 76] ; People v.

Travis, 129 Cal.App.2d 29, 37-39 [276 P.2d 193] ; Levin and Levy, Persuading the Jury, 105 U.Pa.L.Rev. 139, 150; 1 Thompson, Trials, 814-817, 831.) He may not, however, under the guise of argument, assert as facts matters not in evidence or excluded because inadmissible. (People v. Kirkes, 39 Cal.2d 719, 724 [249 P.2d 1]; People v. Evans, supra, 39 Cal.2d 242, 251; People v. Carr, 163 Cal.App.2d 568, 577 [329 P.2d 746] ; People v. Whitehead, 148 Cal.App.2d 701, 705-706 [307 P.2d 442]; People v. Vienne, 142 Cal.App.2d 172, 173-174 [297 P.2d 1027]; People v.

Talle, 111 Cal.App.2d 650, 675 [245 P.2d 633]; see 6 Wigmore, Evidence (3d ed. 1940) § 1807, p. 261.) He may not use evidence offered for a special purpose, such as credibility or state of mind, to argue inferences for which the evidence is inadmissible (People v. Purvis, ante, pp. 93, 99 [13 Cal.Rptr. 801, 362 P.2d 713] ; People v. Adams, 182 Cal.App.2d 27, 38 [5 Cal.Rptr. 795]; People v. Talle, supra, 111 Cal.App.2d 650, 675; see 6 Wigmore, Evidence (3d ed. 1940) § 1807, p. 272), and he may not argue his own belief of guilt based upon evidence not produced in court. (People v.

Kirkes, supra, 39 Cal.2d 719, 724; People v. Edgar, 34 Cal.App. 459, 468 [167 P. 891]; see 6 Wigmore, Evidence (3d ed. 1940) § 1806, p. 259; Stout, Appellate Review of Criminal Convictions on Appeal, 43 Cal. L.Rev. 381, 427.) Moreover, counsel may not use arguments calculated to mislead the jury (People v. Purvis, 52 Cal.2d 871, 886 [346 P.2d 22]; People v. Caetano, 29 Cal. 2d 616, 619-620 [177 P.2d 1] ; People v. Johnson, 178 Cal.App. 2d 360, 372 [3 Cal.Rptr. 28] ; Affett v.

Milwaukee & Suburban Transport Co., 11 Wis.2d 604 [106 N.W.2d 274, 280]; see Michael and Adler, Trial of an Issue of Fact, 34 Colum.L.Rev. 1224, 1483-1484) or that appeal primarily to passion or prejudice. (People v. Wein, 50 Cal.2d 383, 397 [326 P.2d 457]; People v.

Simon, 80 Cal.App. 675, 677-679 [252 P. 758] ; see Levin and Levy, Persuading the Jury, 105 U.Pa.L.Rev. 139, 143; 54 Colum.L.Rev. 946, 949; 36 Colum.L.Rev. 931, 935.) Prosecutors have often stated that it is necessary swiftly and severely to punish the guilty, and such statements have usually been considered within the bounds of proper argument. (People v. Friend, 47 Cal.2d 749, 766 [306 P.2d 463]; People v. Wilson, 61 Cal.App. 611, 628 [215 P. 565] ; State v. Rhoden (Mo.) 243 S.W.2d 75, 77; Johnson v. State, 141 Tex. Crim. Rep. 43 [147 S.W.2d 811, 814] ; Smith v.

State, 74 Ga.App. 777 [41 S.E.2d 541, 551] ; People v. Wood, 318 Ill. 388 [149 N.E. 273, 274] ; see Levin and Levy, Persuading the Jury, 105 U.Pa.L.Rev. 139, 162-163; 54 Colum. L.Rev. 946, 958.) In the present case, however, the prosecutor went beyond merely urging severe punishment. He stated as a fact the vigorously disputed proposition that capital punishment is a more effective deterrent than imprisonment. The Legislature has left to the absolute discretion of the jury the fixing of the punishment for first degree murder. (People v. Green, 47 Cal.2d 209, 232 [302 P.2d 307] ; People v.

Friend, supra, 767-768.) There is thus no legislative finding, and it is not a matter of common knowledge, that capital punishment is or is not a more effective deterrent than imprisonment. Since evidence on this question is inadmissible, argument thereon by prosecution or defense could serve no useful purpose, is apt to be misleading, and is therefore improper. It is true that in People v. Friend, 47 Cal.2d 749, 766-768 [306 P.2d 463], we stated that counsel could advance “arguments as to which penalty will better serve the objectives of punishment” and listed deterrence of crime as one of those objectives.

To the extent that People v. Friend is inconsistent with our conclusion herein it is overruled. That decision, however, was binding on the trial court at the time this ease was tried, and it would have been an idle act for defendant to object in the trial court to the prosecutor’s argument that capital punishment is a more effective deterrent than imprisonment. He is therefore not precluded from raising the question for the first time on appeal. (People v.

Kitchens, 46 Cal.2d 260, 262-263 [294 P.2d 17], and cases cited.) The prosecutor also asserted without any evidence in the record that many criminals use empty guns and that they do so because of fear of the death penalty, and he related alleged conversations between police and criminals that were not in evidence. These facts also are not a matter of common knowledge. (Commonwealth v. Sykes, 353 Pa. 392 [45 A.2d 43, 45] ; see Levin and Levy, Persuading the Jury, 105 U.Pa.

L.Rev. 139, 162-163.) Since judicial notice by a jury is more limited than judicial notice by the trial court (McCormick, Evidence, p. 691), facts are deemed within the common knowledge of the jury only if they are matters of common human experience or well known laws of natural science. (See Commonwealth v. Sykes, supra, 353 Pa. 392 [45 A.2d 43, 45]; McCormick, Evidence p. 691; Levin and Levy, Persuading the Jury, 105 U.Pa.L.Rev. 139, 157-167.) Thus in Commonwealth v.

Sykes, supra, the Supreme Court of Pennsylvania held that statistics allegedly indicating that the number of murders has decreased in states that have abolished capital punishment were not a matter of common knowledge and could not be used by defense counsel in his closing argument.

Although counsel may illustrate a general truth, the illustration must not degenerate into an improper assertion of specific facts bearing on the case in hand. (See 6 Wigmore, Evidence (3d ed. 1940) § 1807, p. 266.) In the present case under guise of illustration the prosecutor improperly attempted to furnish specific facts to support his argument.

Such statements have never been sanctioned; however, since defendant did not object to them, he ordinarily could not raise the issue of their propriety on appeal unless they were of such character that the error could not have been cured by prompt admonition and instructions of the trial court. (People v. Hampton, 47 Cal.2d 239, 240 [302 P.2d 300]; People v. Kirkes, supra, 39 Cal.2d 719, 725-727; People v. Sampsell, 34 Cal.2d 757, 764 [214 P.2d 813]; People v.

Johnson, 153 Cal.App.2d 564, 570-571 [314 P.2d 751].) This rule applies to defendants who have refused counsel as well as to those represented by counsel. (People v. Brajevich, 174 Cal.App.2d 438, 447 [344 P.2d 815].) We cannot consider the prosecutor’s improper statements of fact in the abstract, however, for they were part and parcel of his erroneous argument with respect to the deterrent effect of the death penalty. Moreover, even if that argument were otherwise proper, an admonition to disregard his improper statements of fact would not have cured the error.

This is not a ease in which a misstatement of law or of the evidence in the record could have been corrected by the court or the prosecutor himself had it been called to their attention. (See People v. Sampsell, 34 Cal.2d 757, 763-765 [214 P.2d 813].) The prosecutor firmly believed that the death penalty is a more effective deterrent than imprisonment and that the facts that he advanced in support of his belief were true.

Surely he would not have been willing to recant his statements had defendant objected, and the trial court could not have labelled them as erroneous without itself giving inadmissible hearsay and opinion evidence in support of defendant. At most it could admonish the jury to disregard the prosecutor’s statements; it could not erase them from the jurors’ minds or explain why they should not be considered without further magnifying their impact. The prosecutor’s argument that the death penalty was essential to deter murder was not a minor part of his appeal to the jury for that penalty.

It was one of the three main points around which he built his argument, and he supported it with statements of fact he surely should have known he was not entitled to make. In People v. Linden, 52 Cal.2d 1, 27 [338 P.2d 397], we pointed out that error tending to affect the jury’s attitude in fixing the penalty “implicitly invites reversal in every case. Only under extraordinary circumstances can the constitutional provision [art.

VI, § 41/2] save the verdict.” We find no such circumstances in this case, and we are convinced that it is “reasonably probable that a result more favorable” to defendant “would have been reached in the absence of the error” and that accordingly the error is prejudicial. (People v.

Watson, 46 Cal.2d 818, 836 [299 P.2d 243].) The judgment imposing the death penalty and the order denying a new trial on the question of penalty are reversed, and the cause is remanded for retrial and redetermination of the question of penalty only and for the pronouncement of a new sentence and judgment in accordance with such determination and the applicable law. Gibson, C. J., Peters, J., White, J., and Dooling, J., concurred.

There is no merit in defendant’s contentions that the prosecutor also committed prejudicial misconduct by reserving psychiatric testimony for rebuttal that should have been offered, if at all, in the case in chief and by stating during the voir dire and in his argument that he represented the People of the State of California. The psychiatric testimony was offered to rebut testimony by a defense witness that defendant was incapable of premeditation. The issue of defendant’s capacity to premeditate was not part of the prosecutor’s ease in chief in the trial on the penalty.

It was proper rebuttal, and the trial court did not abuse its discretion in admitting the testimony. Pen. Code, $ 1093, subd. 4; People v. Carter, 48 Cal.2d 737, 753-754 [312 P.2d 665].) Moreover, defendant did not object to its admission. The prosecutor’s statements that he represents the People of California were not improper. (People v. Wein, 50 Cal.2d 383, 395 [326 P.2d 457].)