## Facts

- Earl Clarence Sears was estranged from his wife, Clara Sears, and had been living in a San Jose hotel for about three weeks.
- On May 16, 1963, after drinking beer and dining with a friend, Robert Kjaerbye, Sears went with Kjaerbye to Clara’s cottage and entered through an unlocked front door.
- Kjaerbye stayed in the living room while Sears went to the bedroom where Clara was reading and Clara’s daughter, Elizabeth Olives, was asleep.
- Sears took Clara to the kitchen to talk, then grabbed her robe and produced an iron bar he had concealed on his person.
- A violent attack followed: Clara was severely injured, Clara’s mother Frances Montijo was wounded, and Elizabeth was killed by a knife wound to the throat with additional lacerations.
- A jury convicted Sears of first-degree murder (Elizabeth) and attempted murder (Clara and Frances) and fixed the murder penalty at death.
- The trial court admitted incriminating statements obtained from Sears during custodial questioning without advising him of the right to counsel and the right to remain silent, and without a valid waiver.

## Issues

1. Whether incriminating custodial statements were inadmissible because Sears was not advised of the rights to counsel and silence and did not waive them.
2. Whether the evidence warranted instructing on first-degree felony murder predicated on mayhem.
3. Whether the evidence warranted instructing on first-degree felony murder predicated on burglary.
4. Whether the trial court abused its discretion by refusing to call Kjaerbye as a court’s witness.
5. Whether penalty-phase instructions and related evidence/argument concerning parole or clemency required reversal of the death verdict.

## Decision

- The California Supreme Court reversed the judgment on automatic appeal from the death sentence.
- The court held the trial court erred by admitting Sears’s incriminating custodial statements obtained without advice of the rights to counsel and silence and without a waiver; the error required reversal.
- For retrial guidance, the court held the evidence did not support a felony-murder instruction based on mayhem.
- For retrial guidance, the court held the evidence supported a felony-murder instruction based on burglary (entry with felonious intent).
- The court held the trial court did not abuse its discretion in refusing to call Kjaerbye as a court’s witness.
- The court held the penalty phase was prejudicially affected by instructions and related matters that improperly invited consideration of parole, pardon, or clemency.

## Legal Principles

- Incriminating statements elicited during custodial interrogation are inadmissible absent advice of the rights to counsel and to remain silent or a valid waiver of those rights.
- Felony murder requires a qualifying predicate felony that is meaningfully distinct from the homicidal assault; mayhem cannot serve as a predicate on a record where the purported mayhem is effectively part of the killing itself.
- Burglary may support felony murder where the evidence permits an inference that the defendant entered a dwelling with intent to commit a felony (including felonious assault), and the homicide occurred during the perpetration of that burglary.
- A trial court has discretion whether to call a witness as the court’s witness; refusal is not error absent an abuse of that discretion.
- In a capital penalty phase, instructions and argument that invite jurors to speculate about parole, pardon, or executive clemency improperly affect the penalty determination and are prejudicial.

## Conclusion

The court reversed Sears’s capital conviction because unwarned, unwaived custodial statements were admitted, and it provided retrial guidance limiting mayhem as a felony-murder predicate while approving burglary-based felony-murder instructions when the entry supports an inference of felonious intent, while also rejecting claimed error regarding a court’s witness and condemning penalty-phase materials that misdirect jurors toward parole or clemency considerations.


People v. Sears, 62 Cal. 2d 737, 401 P.2d 938 (Cal. 1965)