Lead Opinion
Defendant Albert Greenwood Brown, Jr., was convicted on one count of rape (Pen. Code, § 261, former subd. (3))
Acting under the 1978 death penalty initiative law (§§ 190.1-190.7), the jury fixed the punishment on count II as death. The court denied the automatic application for modification of judgment (§ 190.4, subd. (e)) and imposed a further sentence of thirteen years on count I (the upper term for rape, plus a consecutive five years for the great bodily injury) with a five-year enhancement for the prior prison term. This appeal is automatic.
Defendant raises several claims of error at the guilt and special circumstance phase of his trial. We find merit in defendant’s contentions that the testimony of a hypnotized witness, evidence of forensic tests of crime-scene fluid stains, and statistics about defendant’s blood characteristics were improperly admitted at the guilt phase. However, we conclude that the errors were harmless in light of the extremely strong evidence against him. We will therefore affirm the guilt and special circumstance findings.
At the penalty phase, we agree with defendant’s objection to instructions that the jury must not be swayed by sympathy or consequences in choosing a sentence. Prior authority of this court flatly prohibits the giving of such antisympathy instructions at a capital penalty trial. (People v. Lanphear (1984)
Defendant also argues that the 1978 death penalty law is unconstitutional, and contends he cannot be resentenced under its provisions, on grounds among others that it impermissibly provides for a mandatory death penalty under certain circumstances. We will conclude that the 1978 statute, correctly construed, preserves the jury’s constitutional discretion to decide the appropriate penalty and is therefore valid. We will note, however, that
I. Guilt Trial
A. Prosecution case.
On October 28, 1980, about 7:30 a.m., 15-year-old Susan J. left her home on Victoria Avenue in Riverside to walk to school with her younger brother and sister. After the younger children left Susan to walk to their elementary school, she continued up Victoria Avenue toward Arlington High School. She never arrived, and efforts throughout the day to locate her were unsuccessful. Her parents telephoned the police.
Sometime between 7 and 7:30 that evening, the telephone at Susan’s home rang, and Susan’s mother answered it. The male-voiced caller said, “Hello, Mrs. J., Susie isn’t home from school yet, is she?” Mrs. J. replied that she was not. The voice then declared, “You will never see your daughter again. You can find her body on the corner of Victoria and Gibson.” At Mrs. J.’s request, the caller repeated the information, then hung up. Mrs. J. telephoned the police again.
Around 7:30, the Riverside Police Department received another call. A male voice said, “On the corner of Gibson and Victoria, fifth row, you will find a white Caucasian body of a young girl in the orange grove.”
Police officers were sent with a police dog to the orange grove at the corner of Gibson and Victoria. They found nothing. Officer Taulli, one of the policemen at the scene, went to the J. residence to get an article of Susan’s clothing to be used by the dog as a scent guide.
Officer Taulli arrived at the J. home about 8:30; Police Chaplain Phillip Morgan arrived at the same time. While Taulli was still there, the telephone rang, and he answered it. A male voice asked if “this [is] the [J.] house or the [J.] residence?” Taulli advised that it was. The caller said, “You can find Sue’s identification in a telephone booth at the Texaco station at Arlington and Indiana.” Taulli told Morgan and Mrs. J. to record any further calls verbatim, then returned to the grove with an article of Susan’s clothing.
After sniffing the item brought by Taulli, the dog shortly found a pair of torn panties in the grove. The dog then led police down the next six rows of trees. There Susan’s body was found lying face down, with dirt piled up on both sides of the head. The body was nude below the waist, except for
Homicide investigators were called to the scene. They found signs of a struggle and indications that the body had been dragged for some distance. Shoeprints in a herringbone pattern were found around the body and photographed. Susan’s blouse was stained and swabs were taken from her vagina and abdomen.
The same night, officers were sent to the Texaco station at the corner of Arlington and Indiana. There, in a telephone booth, they discovered two Arlington High School identification cards belonging to Susan and a library pouch from a book. The pouch was stamped with the words “Arlington High School.”
Meanwhile, Chaplain Morgan had obtained a tape recorder and hooked it up to the J.s’ phone. About 9:30 p.m., the phone rang again. The same male voice said, “In the tenth row, you’ll find the body.”
Early next morning, the police set up roadblocks on the streets near the grove and questioned passersby. Several remembered seeing Susan the morning before, walking on a bike trail through the grove in the block of Victoria between Gibson and Van Burén Boulevard. Others had additionally seen a black man approaching Susan on the bike trail, standing in the grove as she walked by, or following her. The man was wearing jogging clothes; two witnesses more particularly described green running shorts and a green and white shirt.
A number of people also recalled seeing а late-model brown or copper-colored Pontiac Trans-Am parked nearby; it bore a distinctive paper license plate with the words “Made in USA” or “Made in America.” Peter Rodriguez saw a black man emerge from the grove and open the trunk of the Trans-Am; the man kept staring at Rodriguez. Margery Johnston also saw a black man in running clothes come out of the grove. He appeared startled and his legs were dusty or dirty.
Police began a surveillance of defendant’s Gertrude Street residence. On November 6, he drove up in a brown Trans-Am; he was arrested when he drove away again. A warrant to search the residence was obtained and executed that evening. Behind a water heater in the garage, police found a
Defendant’s locker at work was also searched. Police seized jogging clothes, including green running shorts and a green and white shirt. Undershorts found in the locker had semen stains. The locker also contained running shoes; the pattern of their soles closely matched the shoeprints found at the crime scene.
Tests determined that Susan had died by strangulation sometime between 7 and 11 a.m. on October 28. Anаlyses of the stains and swabs obtained from the body revealed the presence of semen.
Three witnesses positively identified defendant at trial as the man they saw in the vicinity of the grove on the mornipg of October 28. Wiley Eng, a high school student, said he was riding his bicycle on the bike trail in the grove. He overtook Susan, who was travelling on foot in the same direction, in the block between Van Burén and Gibson. He then passed the man, who was walking toward him, at a distance of two or three feet. Eng had some three seconds to see the man’s face. He had picked defendant from a photo lineup, saying then he was 60 to 70 percent sure it was the same man. His identification at the preliminary hearing and at trial were unequivocal, though he admitted newspaper photos of defendant had helped him decide.
Julie Pim, another high school student, testified she was a passenger in her brother’s truck, which had stopped for a red light at Victoria and Van Burén on the way to school. From 40 feet, she saw Susan, whom she knew from elementary school, pass close to a man she identified as defendant while crossing the intersection. Ms. Pim had picked defendant from a photo lineup of eight black males, saying she was 60 percent certain and could tell better in person. She saw defendant’s newspaper photo before the preliminary hearing, but she denied it aided her positive identification at that proceeding. She admitted that she might have been influenced at the preliminary hearing by the fact that defendant was the only black person present.
Margery Johnston also positively identified defendant at trial. She had been unable to pick defendant from a photo lineup while under hypnosis. She testified that he appeared different in person than in the photos.
Henry Garcia and Peter Rodriguez testified that defendant looked like the man they had seen that morning, but neither could be certain. Several wit
Over defendant’s objection, Faye Springer and Rodney Andrus, two criminalists from the California Department of Justice (CDJ), testified on the results of their comparison of the victim’s and defendant’s blood, the blouse stains, the vaginal and abdominal swabs, and the semen stains on the undershorts taken from defendant’s locker. Tests were performed in four categories of inherited genetic characteristics (see discussion, post). Springer testified that the stains and swabs matched defendant’s genetic characteristics in several respects, and that defendant’s characteristics were shared by only a small percentage of the black population.
William Anderson and Norm Gibson, acquaintances of defendant, identified the voice on the taped call to the J. residence as that of defendant.
B. Defense case.
Defendant presented an alibi defense. His mother testified that defendant lived with her at the Gertrude Street house in October 1980. She arrived home from work at 7:40 a.m. on October 28. Defendant was at home. He left to buy milk and returnеd at 7:48. He ate breakfast and left for work at 8:14.
II. Penalty Trial
At the penalty phase, the prosecution presented evidence of defendant’s 1977 rape of 14-year-old Kelly P. Defendant pled guilty to the rape and was sentenced to state prison. He was released in June 1980 on one year’s parole.
The defense presented psychiatric and background evidence suggesting that defendant suffered severe emotional problems, including extreme sexual maladjustment and dysfunction. Numerous relatives testified to their affection for defendant. Defendant himself took the stand, expressed remorse for his rape of Kelly P., and asked the jury to show mercy.
III. Guilt Issues
A. Failure to permit expert testimony on eyewitness identification.
At trial, defendant offered Dr. Robert Shomer, a psychologist, as an expert witness on the factors which may cause mistaken observations by eyewitnesses. The People objected on grounds there was no showing that
The trial court relied on the then-established rule (e.g., People v. Guzman (1975)
As McDonald noted, many factors which compromise the accuracy of eyewitness observation extend beyond lay understanding so that expert information on the subject would “assist the trier of fact.” (P. 369; see Evid. Code, § 801, subd. (a).) Moreover, McDonald observed, such testimony does not invade the jury’s province, since it expresses no view on the credibility of a particular eyewitness; in any event, California has rejected the rule that expert testimony is inadmissible when it coincides with the “ultimate issue” in the case. (P. 371.)
Trial courts retain discretion under McDonald to exclude expert testimony of this kind on grounds that it is unnecessary in a particular case, but appellate deference is not absolute. “When an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony. [Fn. omitted.]” (P. 377.)
Applying the Watson standard of prejudice (People v. Watson (1956)
By contrast, ample circumstantial evidence connects defendant in this case to Susan’s death. That evidence includes the consistent description of defendant’s car, the distinctive license plate found concealed in his garage, the incriminating items retrieved from his residence, and the clothing and shoes recovered from his locker at work. Therefore, we cannot say the trial court abused its discretion by excluding expert testimony on eyewitness identification. Even if an abuse of discretion is assumed, the error was clearly harmless.
B. Hypnosis of prosecution witness.
Defendant urges that the testimony of Margery Johnston, including her in-court identification, must be excluded under People v. Shirley (1982)
The People respond first that Shirley is inapplicable, because an extensive voir dire examination of Johnston revealed that her memory of events was not affected by the hypnotic session. Shirley itself concluded, however, that a mere comparison of pre- and posthypnosis statements does not dispel the adverse implications of hypnosis. Hypnosis, said Shirley, not only creates “pseudomemories,” it tends “to clothe the witness’ entire testimony in an artificial but impenetrable aura of certainty [fn. omitted], . . .” (P. 69.)
The People next suggest that the Shirley rule does not apply to hypnotic sessions conducted before Shirley was filed. This court’s recent opinion in People v. Guerra (1984)
However, any error in admitting Johnston’s testimony here was clearly harmless. Two other persons, Wiley Eng and Julie Pim, gave unequivocal in-court identifications of defendant as the man they saw near Susan in the orange grove, and his car, with its distinctive license plate, was
C. Admissibility of forensic analysis of blood and semen stains.
Over defendant’s repeated objections,
Defendant and his amicus, Dr. Benjamin Grunbaum, first contend that admission of the stain-test evidence was error, since the prosecution failed to satisfy the Kelly/Frye rule (Frye v. United States (D.C.Cir. 1923)
Traditional ABO testing is based on the immunological principle that each antigen type will react characteristically in combination with the others. The typing of more recently discovered proteins and enzymes such as PGM, Peptidase-A, AK, and EAP is accomplished by a method known as electrophoresis. In this system, a test sample is placed on a gel medium in an ionized buffer solution. When an electric current is run through the solution, the sample separates and migrates on the medium into characteristic patterns. These arе then fixed, dyed, and read visually by the analyst. (See generally Jonakait, Will Blood Tell? (1982) 31 Emory L.J. 833, 836-842.)
Using these tests, the criminalists in this case compared dried stains recovered from the victim’s clothing, abdomen, and vagina against samples of the victim’s and defendant’s blood. The crime-scene stains were collected some eight to twelve hours after the victim’s death. In one instance, testing occurred some two and one-half months later, after the test sample had been mailed from one GDI crime laboratory to another.
Three antigen and enzyme categories were tested; ABO, PGM, and Peptidase-A. The criminalists reported inconclusive results in certain instances. However, they determined that the crime-scene stains were semen, the typing of which matched defendant’s blood in certain of the categories tested. No test excluded defendant as a potential donor.
In Kelly, supra,
The witness may cite and rely upon written studies and findings by scientists not actually before the court. (Shirley, supra,
Here, defendant does not seriously dispute the scientific validity of genetic typing tests in general. Rather, he and Dr. Grunbaum focus on the large body of literature which suggests that drying, aging, temperature, contamination (particularly with bacteria or other organic substances), and unknown composition of the test sample—conditions often encountered in forensic work—can affect test results in varying degrees. The defense suggests that no standard, proven, and accepted methodology exists to avoid these dangers.
The People concede the problem of sample deterioration. They urge, however, that the antigens, enzymes, and proteins accepted for forensic testing are those most resistant to adverse conditions. Moreover, they suggest, the issue is not the reliability of the tests in general but the testable quality of particular samples. They assert that the factors which may hamper or help preserve testability are generally accepted by scientists and well known to forensic analysts; since a forensic witness may be examined on these issues, the factfinder has an adequate basis to evaluate the accuracy of particular test conclusions.
No California appellate decision has ruled on the admissibility of aged-stain typing under Kelly/Frye. Several have confirmed that stain analysis is admissible as relevant evidence though it merely includes the defendant among the class of possible donors. (People v. Lindsey (1978)
Cases in other jurisdictions have considered the scientific-reliability issue directly, with mixed results. Admission of electrophoretic tests of crime-scene stains was upheld in Jenkins v. State (1980)
In Robinson v. State (1981)
The Robinson court concluded that “general acceptance” within the field of forensic chemistry was sufficient; the proponent of electrophoretic evidence did not need to show approval by the larger scientific community. {Ibid.) It is questionable whether, under our Kelly criteria, the testimony of Hostetler alone would have been sufficient in California to establish acceptance by impartial scientists in the field of forensic chemistry.
Recently, the Michigan Supreme Court reversed an appellate court opinion which had upheld admission of electrophoretic stain tests. (People v. Young (1983)
Dr. Grunbaum, a criminalist and biochemist,
On the other hand, a panel of the appellate court of Illinois more recently ruled that the scientific acceptance of electrophoretic bloodstain analysis had not been proved to its satisfaction. In People v. Harbold (1984)
Our review thus makes clear that the acceptance of tests for typing stale body-fluid stains is a matter of substantial legal controversy, Where that issue remains open, the party offering the evidence has the burden of proving in the trial court that a consensus of scientific opinion has been achieved. (Shirley, supra,
The prosecution did present testimony by Springer and Andrus that the tests they had used were accepted and reliable. However, the People
Portions of their testimony actually supported defendant’s claim that procedures for testing forensic samples vary substantially from laboratory to laboratory (even from analyst to analyst), with little attention to scientific confirmation of reliability. Springer and Andrus also conceded that aged, dried, or contaminated samples could produce misleading results, but they did not explain how their test procedures overcame these dangers. The trial record was patently inadequate to establish scientific acceptance of the tests under Kelly/Frye.
In order to end case-by-case controversy over the acceptance of a particular technique, we have occasionally reviewed the scientific literature ourselves in an effort to determine whether a fair consensus on reliability exists. Shirley is the most notable example. (
The People and, in a separate brief, the California District Attorneys’ Association, warn against such a course here. They urge that the subject matter is too technical and the relevant literature too vast to be assimilated by lay judges lacking the assistance of qualified expert witnesses. Hence, they contend, the result in this case should stand or fall on the trial record, leaving the issue for further development in the trial courts. Under the circumstances, we find wisdom in this view.
We recognize that Kelly/Frye does not demand judicial absorption of all the relevant literature, nor does it require a decision once and for all whether a particular kind of scientific evidence is reliable. The court need only conduct a “fair overview” of the subject, sufficient to disclose whether “scientists significant either in number or expertise publicly oppose [a technique] as unreliable.” (Shirley, supra,
Often, however, the technical complexity of the subject matter will prevent lay judges from determining the existence, degree, оr nature of a scientific consensus or dispute without the interpretive assistance of qualified live witnesses subject to a focused examination in the courtroom. It is for this reason that Kelly/Frye properly emphasizes the record made in the trial court.
Here,, both the technical problem and the state of current scientific opinion are more difficult to comprehend. Electrophoretic typing of human fluid stains is a relatively recent development. (See, e.g., Baird, The Individuality of Blood and Bloodstains (1978) 11 J. Canadian Forensic Sci. 83, 103; see also People v. Young, supra,
It does appear that aged or contaminated stains can undergo actual chemical conversions, resulting in spurious or “false positive” test results. (See, e.g., Sensabaugh et al., Genetic Markers in Semen III: Alteration of Phosphoglucomutase Isoenzyme Patterns in Semen Contaminated with Saliva (1980) 25 J.Forensic Sci. 470, 476-477; Kind et al., An Investigation into the Possible Sources of Adventitious ABH Substances in Bloodstain Grouping (1976) 16 J.Forensic Sci.Society 155, 160; Periera et al., Problems Involved in the Grouping of Saliva, Semеn, and Other Body Fluids (1976) 16 J.Forensic Sci. Society 151, 152; Jenkins et al., The Problem of the Acquired B Antigen in Forensic Serology (1972) 12 J.Forensic Sci.Society 597, 600, 602.) Moreover, the electrophoretic method itself is apparently performed under substantial chemical and electrical variations, and considerable training and experience are necessary to interpret the visual results.
The People respond with opinions by certain scientists that proper methodology and experienced professional judgment can ensure that any typing results reported will be reliable. (E.g., Sensabaugh, Response to the Misapplication of Genetic Analysis in Forensic Science (letter to the edit.) (1984) 29 J.Forensic Sci.Society 12, 15; Culliford, The Examination and Typing of Bloodstains in the Crime Laboratory (1971) p. 75.) It is not clear from our unaided review of these authorities that impartial science has developed a consensus on the crucial issue: whether for the typing categories (ABO, PGM, Peptidase-A) and body fluids (semen, blood, saliva, vaginal secretion) at issue here, current methodology, employed by qualified technicians, can discriminate reliably between testable and untestable samples and between accurate and inaccurate results.
We do not suggest that such a consensus is lacking. We simply conclude that the answer must abide an adequate future trial record made
We find, however, that the error was harmless in light of the overwhelming valid evidence against defendant. In a supplemental brief on the Kelly/Frye issue, defendant argues that the 10-hour jury deliberation suggests the jurors perceived a close case. The undue weight of invalid “scientific” evidence, he urges, was therefore prejudicial.
We are not persuaded by cases defendant cites for the proposition that long jury deliberations indicate prejudice. In People v. Rucker (1980)
In neither case was the length of jury deliberations the sole basis for finding prejudice. Here, despite the virtually unimpeachable prosecution case, the jury may simply have sifted the evidence with special care in light of the capital implications of a guilt verdict. It is not reasonably probable that the stain-test evidence affected the outcome. (Watson, supra,
D. Statistical use of stain-typing evidence.
Defendant suggests that, aside from the reliability of the stain-test results, it was error to permit testimony that the tests placed him within a
Since we have already concluded that the test results themselves were inadmissible on this record, we need not address the merits of defendant’s claim.
No other claims of error are raised at the guilt and special circumstance trial, and our investigation of the record discloses none. We therefore affirm the convictions and the special circumstance finding.
IV. Penalty Issues
A. Antisympathy instruction and argument.
At the penalty phase, the jury was instructed in the words of CALJIC No. 1.00 that it “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” The prosecutor made similar arguments, both during the voir dire of jurors and at the close of the penalty case. Defendant contends that these admonishments not to consider sympathy were error which invalidate the penalty judgment.
Defendant is correct. Because of the individualized sentencing concerns inherent in the Eighth Amendment, “federal constitutional law forbids an instruction which denies a capital defendant the right to have the jury consider any ‘sympathy factor’ raised by the evidence when determining the appropriate penalty. ...” Hence, it is error tо give an antisympathy instruction at the penalty phase of a capital trial. (Lanphear, supra,
Our prior cases also reject the People’s argument that such an instruction is vitiated by the standard admonition (CALJIC No. 8.84.1) to consider
Nor was the error harmless here. Defendant presented testimony from numerous lay witnesses and a psychologist, suggesting that he possessed a gentle and nonviolent nature disturbed only by severe psychosexual problems resulting from a difficult childhood. Friends and relatives indicated their affection for him. Defendant himself took the stand to express remorse for the prior rape of Kelly P., revealed at the penalty phase. Counsel emphasized these considerations in closing argument.
Obviously, defendant intended that this character and background evidence, though unrelated to the offense charged, be considered sympathetically by the jury in fixing his sentence. Yet the jury had been told to consider only matters which extenuated the “crime” and to ignore sympathy. As we have previously held, the ambiguous tension between these instructions and defendant’s right to sympathetic consideration of all the character and background evidenсe he presented requires reversal of the penalty judgment. (Lanphear, supra,
Under the 1978 death penalty statute, once the defendant stands convicted of a capital crime and the jury has found one or more charged “special circumstances” to be true, the case proceeds to a penalty trial in which the jury must decide between only two possible punishments, death or life imprisonment without possibility of parole. (§§ 190.2, 190.3.) In making that determination, the statute provides that the jury shall “consider and take into account and be guided by” evidence of enumerated “aggravating and mitigating circumstances” introduced at the penalty phase or gleaned from the earlier guilt trial. In these respects the 1978 law is similar to its 1977 predecessor.
In contrast with the 1977 law, however, the 1978 statute declares that if the jury finds that “the aggravating circumstances outweigh the mitigating circumstances” it “shall impose a sentence of death.” (Italics added.)
A capital sentencing scheme can “guide” and “channel” the determination of penalty by strictly confining the class оf offenders eligible for the
We agree with defendant, therefore, that a statute would be invalid if interpreted to preclude juror consideration of any factors constitutionally relevant to imposition of the death penalty. Nor would a statute pass muster if it required jurors to render a death verdict on the basis of some arithmetical formula, or if it forced them to impose death on any basis other than their own judgment that such a verdict was appropriate under аll the facts and circumstances of the individual case.
Similarly, the reference to “weighing” and the use of the word, “shall” in the 1978 law need not be interpreted to limit impermissibly the scope of the jury’s ultimate discretion. In this context, the word “weighing” is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary “scale,” or the arbitrary assignment of “weights” to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider, including factor “k” as we have interpreted it.
As Justice Stevens noted in his concurring opinion in Barclay v. Florida (1983)
“Shortly after the enactment of the current statute, the Florida Supreme Court explained: ' “. . . [T]he procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death
This construction of the 1978 law honors the plain language of section 190.3. It also explains the most likely "constitutional" intent of the drafters and avoids the constitutional difficulties of a finding that the statute permits "mandatory" death penalties.
Defendant makes three remaining contentions. He urges that certain testimony by the victim’s father at the guilt phase was improperly calculated to arouse jury passions on the issue of penalty. He points to prosecutorial comments that he could take the stand to evoke jury sympathy without discussing his offense.1 ****************
V. Conclusion
The judgment as to guilt, and the finding of a special circumstance, are affirmed. The penalty judgment is reversed.
Broussard, J., Reynoso, J., and Kaus, J.,
Notes
All statutory references are to the Penal Code unless otherwise indicated.
Shirley expressly held that the Watson standard of prejudice would apply to erroneous admission of testimony by a previously hypnotized witness. (
Prior to the criminalists’ testimony, defendant moved in limine to exclude the stain-test evidence; the court ruled the evidence could come in “if there was a proper foundation.” Defendant objected again after Andrus’ testimony, and the court reserved its ruling until after Springer’s testimony. The defendant objected again at the close of the People’s case; the objection was noted and overruled.
Dr. Grunbaum holds a Ph.D. degree in biochemistry and a master’s degree in criminology with a specialty in forensic identification. He has been employed by the University of California as a research biochemist for 30 years, specializing in analytical biochemistry and microanalysis, which includes the examination of body fluids. (Washington, supra,
We recognize that defendant’s amicus, Dr. Grunbaum, is himself a well-credentialed forensic scientist who has pioneered in the development of electrophoretic techniques. (See fn. 4, ante.) His record of opposition to their forensic use under current conditions is well-established. In addition to his brief in this case, we judicially notice his testimony in other trials that the visual subjectivity of the electrophoretic process, and the possibility that aging or contamination will cause type conversions and spurious results, render forensic tests for ABO and PGM types in crime-scene stains highly suspect. (E.g., State v. Washington, supra,
We note, however, that both California and the majority of other jurisdictions have traditionally admitted statistical blood-group evidence of this kind in criminal cases, even where it simply includes the accused within the class of possible donors. (See Lindsey, supra, 84 Cal.App.3d at pp. 863-866, and cases cited; Vallez, supra,
Defendant also challenges a second feature of CALJIC No. 1.00 as given at his penalty trial—its admonition that the jury must render a “just verdict regardless of what the consequences of such verdict may be." (Italics added.) As defendant notes, this phraseology, like all of CALJIC No. 1.00 (see Easley, supra, at pp. 875-877, and fn. 6), was designed for guilt trials, at which “defendant’s possible punishment is not ... a proper matter for juror consideration . . . .” (People v. Honeycutt (1977)
The relevant portion of section 190.3 provides: “After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.”
We are mindful of the principles of judicial restraint which caution against premature consideration of constitutional issues, especially in the uncertain constitutional waters which surround the death penalty. (See People v. Frierson (1979)
If this court were of the view that the law is unconstitutional on its face, as defendant contends, it would certainly be our obligation to say so. While we are not of that view, we do find a potential for confusion in the law which calls for certain prophylactic instructions in future death penalty trials, including any retrial which defendant may confront. {Infra, fn. 17.) Under the circumstances, it is not appropriate for this court to withhold guidance simply because defendant’s death penalty judgment is being reversed on other grounds. (See Code Civ. Proc., § 43; People v. Ramos (1984)
With all due respect to the Chief Justice, we do not understand how our decision to confront certain constitutional issues which defendant has raised “insulates” our decision on those issues from United States Supreme Court review. (See cone. & dis. opn. by Bird, C. J., post, at p. 547.) Our decision that the 1978 law is constitutionally valid, and that defendant may therefore be retried under its provisions, is subject to immediate review by the high court. More fundamentally, even if defendant chooses not to seek review at this time, or if the high court denies review-, defendant is no worse off than if we refrained from deciding those issues. If he is sentenced to death upon retrial, his judgment of conviction will come to this court automatically for review; and if we affirm his conviction, notwithstanding his constitutional objections, he will be free to seek review from the United States Supreme Court in precisely the same manner as if we had deferred consideration of the constitutional challenge until that time.
““Relevant” circumstances are those which the Constitution requires to be cqnsidered in reaching a penalty decision, or which are constitutionally permissible and must or may be considered under the terms of the death penalty statute. Sentencers’ racial, religious, and political prejudices are examples of constitutionally impermissible considerations.
In Jurek v. Texas (1976)
The mere fact that a statute requires the sentencer to “weigh” aggravating against mitigating circumstances, or to determine which “outweigh” the others, does not render the law invalid. (See Proffitt v. Florida (1976)
“Aggravating” and “mitigating” are not defined by the statute. However, we see no statutory intent to require death if the jury merely finds more bad than good about the defendant and to permit life without parole only if it finds more good than bad. At a capital penalty trial, defendant has already been convicted of committing, without legal excuse, an intentional first degree murder with at least one “special circumstance” necessary to make
At least one other state supreme court has interpreted a somewhat similar statute to clarify the jury’s fundamental sentencing discretion. North Carolina’s death penalty law requires the sentencer to find (1) whether any statutory aggravating circumstances exist, (2) whether they are “sufficiently substantial” to call for the death penalty, and (3) whether any one or more mitigating circumstances “outweigh” the aggravating circumstances. “Based on these considerations,” the jury must then recommend whether the defendant should receive death or life imprisonment. (N.C. Gen.Stаt. (Cum.Supp. 1981) § 15A-2000, subds. (b), (c).) In State v. McDougall (1983)
McDougall found “instructive” the Utah Supreme Court’s analysis in State v. Wood (Utah 1982)
McDougall upheld the death judgment there at issue against claims that the jury had not been adequately instructed about the scope of its sentencing discretion. As the court noted, the jury was told, among other things, that “you are the sole judges of the weight to be given to any individual circumstance which you find, whether aggravating or mitigating. Your weighing should not consist of merely adding up the number of aggravating circumstances and mitigating circumstances. Rather, you must decide from all the evidence what value to give to each circumstance and then weigh the aggravating circumstances, so valued, against the mitigating circumstances, so valued, and finally determine whether the aggravating circumstances outweigh the mitigating circumstances.” Jurors were also instructed that “you may consider any circumstance from the evidence which you are satisfied lessens the seriousness of the murder or suggests a lesser penalty than otherwise may be required, such as the defendant’s character, education, environment, habits, mentality, propensities and record, and any other circumstances arising from the evidence which you deem to have mitigating value. ...” (301 S.E.2d at pp. 324-325.) These instructions were neither directly derived from, nor expressly required by, the statutory language.
As we explained in Boyd, supra, the drafters of the 1978 initiative may have believed the 1977 law was unconstitutional if, by requiring the jury only to “consider” the factors listed in the statute, it implied that the sentencer actually was free to determine the penalty on any basis it chose. Such fears, plausible in 1978, were later laid to rest by the United States Supreme Court. (Boyd, supra, at pp. 773-774, fn. 5; see Zant, supra,
In Easley, this сourt ruled that it was prejudicial error to give the 1978, or “mandatory death penalty,” version of CALJIC No. 8.84.2 in a case properly tried under the 1977 law, since a defendant “is . . . generally worse off under [the mandatory feature of] the 1978 law.” (34 Cal.3d at pp. 883-884, italics added.) Our discussion assumed that the 1978 version of section 190.3 intended to require the death penalty in certain cases. No extensive analysis was provided, however, and the statutory interpretation was not necessary to our decision. Certainly the 1978 instruction given in Easley was prejudicial when compared to its 1977 counterpart, since the latter, unlike the former, contained no unexplained use of mandatory language. (See discussion, post.) Easley itself recognized that, even if statutory language was susceptible to a liberal saving construction, instructions given in the literal statutory language might nonetheless be deficient. (P. 878, and fns. 8, 10; see discussion, ante.) Nothing in Easley precludes us from holding that the 1978 statute permits the jury to reject death if persuaded by any evidence that it is an inappropriate penalty.
We acknowledge that the language of the statute, and in particular the words “shall impose a sentence of death,” leave room for some confusion as to the jury’s role. Indeed, such confusion is occasionally reflected in records before this court. For that reason, trial courts in future death penalty trials&emdash;in addition to the instruction called for by Easley, supra,
Defendant testified at the penalty phase, expressing remorse for the prior rape and asking the jury for mercy, under a prior trial court ruling that he could do so without exposing himself to examination on the circumstances of the instant crimes.
The parties and other persons have asked us to adopt a specific jury instruction to guide the jury’s determination of the penalty in future capital cases. We have been advised that the Committee on Standard Jury Instructions, Criminal has drafted a proposed intruction to be inserted into CALJIC No. 8.84.2. It directs the jurors that:
“The weighing of aggravating and mitigating circumstances does not mean a mere mechanical weighing of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. In weighing the various circumstances you simply determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. To return a judgment of death, each of you must be persuaded that the aggravating evidence [circumstances] is so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.”
We do not adopt the exact language of this instruction, which, in any case, is subject to revision by CALJIC before it is finally adopted. By way of guidance to the trial courts, however, we believe it appropriate to. state that this language, if inserted to replace the language in the current third paragraph of CALJIC No. 8.84.2 (which says that if aggravating circumstances outweigh mitigating circumstances the jurors “shall” return a verdict of death), would conform to our opinion.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
Concurrence Opinion
I concur in the affirmance of the defendant’s guilt, in the finding of special circumstances and in parts IV B and C of the majority opinion, but I must dissent from the reversal of the penalty judgment as provided in part IV A of the opinion.
Had there been several grounds requiring reversal of the penalty, I would have considered concurring under compulsion of People v. Lanphear (1984)
Rather than repeat my analysis of that commonly given instruction, I refer to the reasons expressed in my dissents in People v. Bandhauer (1970)
I would affirm the judgment in its entirety.
Concurrence Opinion
I concur in the judgment to the extent it affirms defendant’s murder conviction and the finding of special circumstances.
I likewise concur in the majority’s conclusion that the 1978 death penalty law is constitutional.
I am troubled, however, by the suggestion or implication in the majority opinion regarding the possible insufficiency of the jury instructions which heretofore have been given in capital cases. Appeals are presently pending
We would place an intolerable and unjustified burden upon the judicial system were we to reverse 170 death judgments merely because of possible “confusion” regarding the meaning of standardized jury instructions which, in my view, are sufficiently clear to guide the jury in its penalty determination. It is conceivable, of course, that in a particular case the record will establish that, by reason of the language of the 1978 law, or instructions based thereon, a particular judge or jury clearly misunderstood and misapplied its sentencing responsibilities. Such a case seemingly would be quite rare, and on a silent record we must presume that the sentencer properly discharged its statutory duties. Reversible error could not be posited solely upon mere prosecutorial argument misstating the nature of the sentencing process, at least in the absence of some affirmative indication that the jury was thereby misled. Moreover, a defendant’s failure to object to such an argument or to request an appropriate admonition would prevent our consideration of any asserted error or misconduct. (People v. Green (1980)
Aside from these substantial reservations or misgivings regarding the effect of today’s decision upon the 170 automatic appeals now pending before us, I concur with the majority opinion’s constitutional anаlysis.
I dissent, however, to the reversal of the penalty of death under People v. Lanphear (1984)
I also fully concur with the majority’s decision to reach the constitutional issue at this time. The 1978 death penalty law has been “on the books” for nearly seven years and has produced approximately 170 judgments of death currently on appeal with this court. New trials are commencing daily. Accordingly, the trial courts throughout the state, as well as the trial court which will retry this defendant, sorely need to know of any constitutional defects we discern in the 1978 law or the jury instructions based thereon. In my view, it would be most unfortunate for the bench, the bar, the people of this state, and the defendant himself, were we to continue to withhold such guidance merely because the defendant’s conviction must be reversed on some other ground.
Concurrence Opinion
I concur only in the judgment. I write separately to underscore my misgivings about the majority’s use of
It is troubling that a case with clear penalty phase error is being used as the lead case to pass on the constitutionality of the 1978 death penalty láw. While my colleagues “are mindful of the principles of judicial restraint which caution against premature consideration of constitutional issues” (maj. opn., ante, at p. 538, fn. 9), nevertheless they proceed to rule on the constitutionality of Penal Code section 190.3, subdivision (k) and the so-called “mandatory” aspect of the 1978 law, on the ground that it would not be “appropriate for this court to withhold guidance simply because defendant’s death penalty judgment is being reversed on other grounds.” (Maj. opn., ante, at p. 538, fn. 9.)
Such a procedure, of course, violates this court’s own cautions that “we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.” (People v. Williams (1976)
A majority of this court declined to pass on the constitutionality of the 1977 death penalty law in Frierson, supra, 25 Cal.3d at pages 188-196 (cone. opn. of Mosk, J. and Newman, J.), 196-199 (cone. opn. of Bird, C. J.), and 199 (cone. opn. of Tobriner, J.), and in People v. Green (1980)
Respondent’s petition for a rehearing was denied January 30, 1986, and the opinion was modified to read as printed above. Lucas, J., and Panelli, J., were of the opinion that the petition should be granted.
The majority also rely on People v. Ramos (1984)