Dorman Fred TALBOT, Jr., Appellant, v. Louis E. NELSON, Warden, San Quentin Prison, Appellee. (Lawrence E. Wilson, former appellee.), 390 F.2d 801

CHAMBERS, Circuit Judge: On March 12, 1965, Talbot brutally murdered Michael Bartholomew by hitting him with a wrench, which fractured his skull, and by stabbing him with a large knife. Bartholomew was just out of the military service with separation money in cash. The motive was to get the cash. In due course, a Santa Barbara County state jury convicted Talbot of first degree murder and sentenced him to death. The California Supreme Court affirmed. People v. Talbot, 64 Cal.2d 691, 51 Cal. Rptr. 417, 414 P.2d 633. Execution dates have been set, each postponed by subsequent legal proceedings.

Twice petitions for certiorari have been denied by the Supreme Court of the United States. Talbot v. People of the State of California, January 9, 1967, 385 U.S. 1015, 87 S.Ct. 729, and June 12, 1967, Talbot v. People of State of California, 388 U.S. 923, 87 S.Ct. 2141. The first petition was sought from the California Supreme Court decision affirming the conviction and the second was sought after the California Supreme Court on February 9, 1967, denied a petition for writ of habeas corpus.

On February 14, 1967, Talbot filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California. The petition was denied on February 23, 1967, after a hearing on February 20, 1967. This appeal follows. On his direct appeal to the California Supreme Court, Talbot did not raise the point of California providing no standards for a jury to determine whether life or death should be voted after determining that there was guilt of murder in the first degree, except in his closing brief and in his petition for rehearing there.

However, Talbot did put the point in his first petition for certiorari. It is said the lack of standards denied due process. We have decided that we should not pass on the foregoing point, and so we dismiss without prejudice the assignment of error thereon, leaving appellant to pursue it elsewhere, provided he does so promptly. We do this in view of the Supreme Court of California’s orders of November 9, 1967, in Saterfield and Anderson (its Nos. 11,573, 10,126, 11,572 and 9,217), which have the point of lack of standards and other constitutional questions in them.

Normally we could not sanction the foregoing procedure, but here we think it appropriate. There is reason to dispose now of the points not in Saterfield and Anderson, but in view of the Supreme Court of California’s action in the cases above listed, we have concluded to proceed as we have above indicated. Next appellant contends he was deprived of due process when the trial court permitted in evidence a rather shocking photograph of the victim’s body. We do not believe the point reaches constitutional dimensions, and we agree with the California Supreme Court, People v.

Talbot, 64 Cal.2d 691, 51 Cal.Rptr. 417, 414 P.2d 633, that the ruling was within the trial court’s discretion. Likewise, we do not believe we should overturn the California Supreme Court’s ruling that the unobjected-to comment by the prosecutor on the picture was not error. A contention is made that Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, somehow requires a reversal. Into this contention is woven an assertion that the California Supreme Court held that the admission of some illegally obtained evidence was harmless error.

It found no illegally obtained evidence and we find none either. See Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788,17 L.Ed.2d 730. The trial court refused to give a manslaughter instruction. California in some murder eases requires instructions on diminished responsibility by reason of mental disease or temporary conditions such as drunkenness, but short of insanity. People v. Ford, 65 Cal.2d 41, 54-55, 52 Cal.Rptr. 228, 416 P.2d 132 (Talbot has a history of epilepsy.) The California Supreme Court held that the failure to give the manslaughter instruction in no way prejudiced appellant.

Also, we agree with Poulson v. Turner, 10 Cir., 359 F.2d 588. Appellant further contends that the prosecutor violated Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, when he commented on failure to produce witnesses. Talbot says it was a comment that Talbot should have testified. Just as the Supreme Court of California found, we find the comment of the prosecutor to be no such thing. We have considered the other points raised by appellant and find them without merit. Lawrence E. Wilson has been succeeded by Louis E. Nelson as warden at San Quentin.

Therefore, Nelson is substituted for Wilson as appellee. The order of the district court from which this appeal is taken is affirmed. . The California Supreme Court held that Talbot’s case involved the felony (here burglary) murder rule. And, the diminished responsibility (short of insanity) instruction for murder in California has not yet been accepted in felony (other simultaneous crime) murder cases. Particularly in his petition for habeas corpus to the California Supreme Court and the second petition for certiorari in the United States Supreme Court, Talbot’s emphasis is that People v.

Ford, supra, was not available to him at the time of his trial or automatic appeal to the California Supreme Court. That is true. But People v. Ford, supra, does not appear to have changed California’s nonapplication of the instruction in felony (burglary) murder cases. The appellant also relies on more recent People v. Aubrey, 253 A.C.A. 1009, 61 Cal.Rptr. 772. Aubrey was charged with murder of Garrón and felonious assault upon Roberts and upon Myles. The district court of appeal apparently treated the three incidents as successive, just as the California Supreme Court did in People v. Ford, supra.

Or perhaps the felonious assaults are not within the class of felony-murders where the concurrent felony substitutes for malice. If we were to agree that since Talbot’s case California has changed its rule on diminished responsibility, we would still regard it as a state matter not rising to the status of due process. A comparable situation would be if a state should change on insanity from the M’Naghten rule to the Durham rule after it affirmed a conviction under the former rule. Further, it is not for us to interfere with California defining a felony (burglary) murder situation.