*1 No. 22356. Dec. [Crim. 1985.] PEOPLE,
THE Plaintiff and Respondent, DAVENPORT,
JOHN GALEN Defendant and Appellant.
Counsel Denvir, Defender, Quin State Public Supreme under appointment Court, Blum, Donald L. A. Public Kerson and William State Deputy Defenders, for Defendant and Appellant. General, Deukmejian and John K. de Robert
George Attorneys Van Kamp, Philibosian, General, Kremer, H. J. Attorney Chief Assistant Daniel General, Assistant D. I. and John Attorney Harley Mayfield, Motley Keith General, W. for Plaintiff and Carney, Deputy Attorneys Respondent.
Opinion REYNOSO,J. stands convicted of murder the first Appellant by jury with the degree special circumstance that the murder intentional involved the infliction of torture. The fixed the at death. The jury court this is automatic. appeal makes three
Appellant challenges that the murder was finding com Code, (Pen. mitted under circumstances. special et First 190.2 seq.)1 ap § that the torture-murder urges circumstance enacted pellant special by the measure of rational, initiative sufficiently precise limited to a constitutional basis for (Smith of the death provide imposition v. penalty. 566, (1974) 415 U.S. 605, 611-612,
Goguen 572-573 L.Ed.2d [39 S.Ct. 1242]; Godfrey 420, Georgia (1980) 446 U.S. L.Ed.2d 1759].) 100 S.Ct. Secondly, contends that the appellant instructions jury defining special circumstance were inconsistent with the defi torture, of first degree nition murder by and that the combination was likely have misled on jury matter vital of the truth of the special circumstance. (Pe ople Bail 828].) Finally, argues verdict appellant special returned failed to meet sections requirements 190.2 and (a). subdivision We conclude that the special circumstance is reasonably susceptible of a construction which is mandates, consistent with constitutional that the trial court correctly instructed the jury, that the special verdict met statutory We requirements. therefore affirm appellant’s conviction of murder with circumstances. special
Under cases decided this court and by the United States Supreme Court, however, three instructional errors at the penalty phase trial statutory Code,
1All further references are to the Penal unless otherwise noted.
256 proceedings. for new and remand reversal of the death
require
judgment
77, 655
21
(1982)
Cal.Rptr.
v. Robertson
ople
(Pe
[188
309, 279];
(1983)
Cal.Rptr.
Facts victim, spent Gayle Lingle, The uncontradicted evidence showed Tustin, where she ’N Bull Bar in of March at the Sit evening At Richards, she knew. both of whom talked with and with appellant Larry home. Rich- her a ride one in the she asked Richards to point give evening accept not then her off and her ride. She did put ards offered a appellant him she telling offer. Later in the her boyfriend she evening telephoned A few minutes a be home soon. had beer and a ride and would six-pack' a.m., both she and appellant later between and 1 approximately midnight in a The morning lying large, left the bar. victim’s was found the next body field Tustin. uncultivated south of the 1-5 near freeway and Michelle The area where by Myford was found is bounded body Streets; Street and Myford a dirt berm lies between two to three feet high items in which from the field. Between the road was an area berm random, This twisting footprints. a woman’s were scattered purse among Behind the in that location. evidence had occurred suggested struggle water, berm, of bloodied 20-30 feet a large pool about from the body, of boots. There and a pair woman’s a woman’s pair pants, underpants, left and re-entered sets of area. One set were two tracks in the motorcycle Myford, led from area of of tracks The second set Myford struggle. and back body, feet of the end of the dirt berm within four to five over the the street. had that he left learned nickname was “Honda Dave.” Police Appellant’s he rode a and that ‘N Bull of her death the Sit with victim on the night officers, a warrant to who had 350 cc Honda On March motorcycle. at offense, carport the open for an entered arrest unrelated traffic appellant tires on ap- home where examined and they photographed appellant’s between the match The a possible bike. examination indicated pellant’s officers tires. The tracks at the murder scene and the tread on appellant’s the house and went to arrested appellant. motorcycle who placed three eyewitnesses
The prosecution produced 12:30 and scene between the murder to one owned appellant similar Myford on his workplace witness had left 1:30 on March 27. first a.m. of Michelle intersection after 1 a.m. As he passed Road shortly *10 a Myford he saw looked similar the road which motorcycle beside parked to a 350 cc Honda that testified that she his son owned. The second witness also had seen driven and that she had the intersection about 12:30 a.m. past a motorcycle off had a man parked the road near a She seen telephone pole.
crouched on the far shirt and side of the dirt berm. The man wore a plaid had shoulder hair. of his length activity. She could not ascertain the nature The color, motorcycle was foreign, Japanese, dark and a probably make. This witness did not A witness testified that third identify appellant.
she had driven around that corner at 12:35 a.m. As her headlights swept the field she saw a who was crouched over parked and man motorcycle and to be appeared The the bike digging. resembled motorcycle belonging exhibit. appellant was the courtroom as a prosecution man was white and had he collar hair. She saw his face when length briefly looked into her had headlights. Prior trial this picked appellant’s witness as one photo of three she saw. She which could have been the man unable to select from a live At trial the district appellant lineup. attorney displayed from witness had photographic which the line-up originally selected several pictures. She and appellant selected testi- photograph fied that she thought was the she had seen in field person although she could not be positive that it was.
Three witnesses that connected expert testified to facts defendant’s mo- Driver, torcycle the crime. Bonnie criminalist employed Orange Sheriff’s County that she had examined Department, vegetable testified mat- ter taken from and it with appellant’s motorcycle vegetation compared taken from the area where the was found. Driver body victim’s found the gross morphology to be plants in both consistent with each samples other.
A forensic Pallinick, examined and microscopist, Skip compared heavy mineral content of soil taken from bike with samples appellant’s samples taken at the murder scene. that the He testified were samples generally consistent with each other. One from the samples motorcycle con- tained sufficient to the murder scene similarity samples witness concluded they were Both of virtually indistinguishable. these witnesses admitted they had not compared the taken samples from appellant’s bike with samples taken from other Dr. parts Orange County. Dana, Stephen defendant, a geologist retained examined the same soil samples found similarities and differences in all of them. Based on his knowledge geology the area Dr. Dana that opined could have samples come from anywhere in Orange County. Leonard,
Jack for the production manager International Sport Division of Rally Tire testified Dunlop Company, that appellant’s motor- have could made the tracks at the scene. cycle Mr. Leonard had examined casts the tracks found near the victim’s plaster body the actual tires had the rear tire that the tracks of the motorcycle.
on He found appellant’s of the tire as the rear same and distinctive characteristics highly unique with a tires, 4.00-18 size motorcycle Both were brand motorcycle. Dunlop a defect in a K-70 tread Both were characterized portion pattern. by damage defect was caused
tread known as the cross-slot. The pattern *11 that tires Mr. Leonard testified the half of the mold. upper manufacturing line. with from the production such blemishes are removed routinely regular to trade restric- are as at reduced but price pursuant sold “blems” They that not more are was Leonard’s tions not to the U.S. It shipped opinion at the same than two or which were manufactured three tires with this defect would have eluded inspectors time and as the tire on bike place appellant’s are manufactured in currently and tires been to the U.S. Similar shipped U.S., alu- is than the stronger the but the steel utilized for the molds here which caused breakage minum in kind of used Britain and not the subject a nine-year- it this defect. The also that was unusual witness explained wear, motor- old tire to as the tire on appellant’s show did only percent worn (95 vast tires are cycle.2 completely The similar majority percent) was consistent with out after five six This of wear years degree use. the track the front the tracks at Leonard testified that the scene. Finally, as tire the which he motorcycle recognized scene showed a tread pattern tire, motorcycle. on similar the front tire Bridgestone appellant’s The nature the that we describe the charge against appellant requires of her body details of the victim’s and the cause grotesque condition of the torso, death. The over the body, nude for a sweater draped upper except had suffered and and about stabbing slashing numerous extensive wounds neck, the chin and as wounds to the fore- jaw well as defensive hands and arms. The victim’s carotid had breasts were artery been severed. Her bruised. A wooden An long stake had been inserted into rectum. autopsy her various revealed that the was forced into injuring stake deeply body, internal organs right armpit. tissues before it came to under rest just Fischer, the cause testified that Dr. Walter autopsy pathologist, the insertion the loss of and that artery, death was blood from carotid that it Fischer testified of the wooden stake was a factor. Dr. contributing was wooden stake the time the was his that the victim alive at was opinion inserted, cavity in the found pleural because the 200 cc’s of blood he a beat- the lung by have out could been of the only perforation pumped that the surprisingly not believe thus Dr. Fischer did ing—and living—heart. stake contacted found at where the point small amounts of blood it manufactured appellant’s bike showed had been numbers on the rear tire of 2Code Leicester, had been particular mold that England and indicated the of 1972 in spring used. anus liver lack of further contradicted his conclusion. He attributed the bleeding had entered a state probability body victim’s shock after was the carotid cut before stake inserted. was artery in shock, When he vital to the most organs— blood channeled explained, brain, of lesser primarily organs heart and the vessels lungs—and intestines, immediate contract. importance, such as
Dr. Fischer testified had occurred that the neck and hand wounds probably before the have He the victim could penetration stake. testified that lived from 5 to 20 could offer minutes after was He not severed. artery a medical when the stake opinion victim or was conscious was inserted.
Dr. Renee conclu- Modglin, an reached different experienced pathologist, sions. Based on an and body examination of of the victim’s photographs Dr. Fischer’s autopsy report, Dr. formed Modglin professional opinion that the stake had her entered the victim’s after death. He probably body blood suggested could have either one initial lung through entered cuts in the carotid the body. movements artery during post-mortem He offered his would not have bleed- opinion a state shock prevented in all of the areas ing which had contacted. the stake
The prosecution also a John Farmer who testified to called as witness him while both were a hold- incriminating admissions made to appellant at ing cell various times between Court at Orange County Superior 8, 1980, September testimony, and to According December 1980. told her
appellant Farmer he had a that he had sodomized while killed girl, she yelled for him to to and tried cut off her stop, that he had stabbed her head but could not succeed small. said Appellant because his knife was too her, that after he stabbed a he onto wooden body had lowered girl’s stake because he wanted to a When the stake came make scarecrow of her.
out of the he ground, and it into her Ac- body. had kicked further pushed Farmer, to cording he had killed her because she appellant variously said had sexual relations with had another man and because she led on. appellant
Appellant’s was testimony consistent with that of the other witnesses who had been at the Sit ‘N Bull 26. Bar on March After his cashing paycheck at a local bowling he alley, gone had to bar around 8:30. There he drank played pool, beer and visited with He was with people. acquainted the victim and with her had boyfriend. asked for Lingle Larry Richards a ride home but Richards said she would have to until wait he finished playing pool. had Appellant then her a ride but offered she had not replied. Some time later after she indicated she wished to some to purchase beer take home her bought a His appellant motive was return the six-pack. favor the he was too broke to and her had when victim done for boyfriend appellant carried the beer. He with her and buy himself drink. walked out of the bar ride; she her lot he and offered again her the parking gave six-pack coffee nearby went to declined. left on his and again motorcycle Appellant alone, home to bed. The He then went drank two of coffee. shop, cups seven, showered at a following morning appellant got up quarter work Cosmetics, begin for his He was due headed at job Orange. Apri Tustin. Appellant at 8 a.m. but a flat tire in his motorcycle developed a new inner he and called his At 8:30 a.m. purchased stopped supervisor. work at 9:30 at tube from Tustin Honda and the tire. He arrived changed a.m. on sleep p.m. she had gone testified that
Appellant’s girlfriend in their bed when 26. but was March was not at home at that time Appellant dressed his only she awoke at the following morning. Appellant cuts, arms, There were no and torso. undershorts she could see his legs night during had heard no sounds scratches or blood on him. She or his clothes. indicated he had showered or cleaned himself Cosmetics, Stock, testified that she Susan at Apri appellant’s supervisor 27. on March She had tried to had being tardy excuse verify appellant’s *13 tire had been recently examined the neither bike and formed the that opinion Veach, Police the Irvine Department Officer an for changed. investigator He also his arrest. formed examined the tires on after motorcycle appellant’s Paul Jorgensen, that changed. neither tire had been opinion recently Honda, at 9 a.m. business and opened Tustin that the manager testified motorcycle no of a tube that his sales records sale for March 27 showed such as that appellant claimed to have purchased.
I with- life imprisonment Section 190.2 for the of death provides penalty of first degree is found guilty out the when defendant possibility parole “the murder was that circumstance murder committed under special of this purpose For of torture. intentional and involved infliction no physical pain of extreme of the infliction section torture requires proof 190.2, (a)(18).) (§ its duration.” subd. long matter how irrational, and vague is circumstance contends that this special Appellant the group persons narrow to “meaningfully that it fails overbroad and arbitrary vehicle as a serves only and to the death penalty subject in their sole and action, jurors prosecutors, be used whenever capricious contends, constitu- This, violates he discretion, so desire.” unguided that specifically penalty, of the death application governing tional principles 261 which calls for the state to “tailor and its in manner that avoids law a apply arbitrary infliction of v. capricious (Godfrey the death penalty.” 420, 398, Georgia, supra, 406],)3 446 U.S. 428 L.Ed.2d [64 circumstance; focuses on four Appellant’s argument aspects special two relate to the intent of the accused and two involve the experience 190.2, victim. He asserts literal subdivision section language (18) (a) fails to require the defendant have either the intent to specific (see, 425, kill the victim People (1980) v. 434 Velasquez 26 Cal.3d [162 306, Cal.Rptr. 341]) (cf. 606 P.2d or the to torture specific People intent Wiley (1976) 135, Thus, 18 881]). Cal.3d 162 P.2d 554 Cal.Rptr. [133 the defendant’s state of mind need than that of be no more culpable any other murderer. Appellant further that the infliction of extreme argues pain on the victim is (see, (1949) characteristic of most murders v. Tubby People 72, 864, 34 Cal.2d 51]; P.2d v. Caldwell 43 Cal.2d People [207 539]; 539, 868-869 P.2d Steger (1976) People [279 1206]; P.2d 83 A.L.R.3d v. Bender 8]) and is not a valid criterion for therefore imposition capital punishment. Finally, asserts that statute appellant that the requires proof victim extreme subjectively experienced prior pain death. Since it highly would ever be improbable prosecution deceased, able direct evidence of produce experience appellant claims this element invites arbitrary of the statute. capricious imposition 190.2, contrasts these (a)(18) section
Appellant aspects subdivision with the (c)(4), of former section the death requirements subdivision law enacted in That form of designated 1977. statute as one capital willful, murder a murder which was and which deliberate and premeditated *14 190.2, involved the infliction of Torture under former section sub- torture. (c)(4)
division to inflict extreme and prolonged of the intent required proof pain.4 190.2, (c)(4), unlike the
According pres section subdivision appellant circumstance, ent situations in which special isolated those successfully victim died a and death. From the the lan lingering changes prolonged 3Appellant’s argument solely is on placed upon may based the restrictions statutes which subject a criminal penalty by Eighth defendant to the and death Fourteenth Amendments (art. to the I, 7) United States process Constitution and the due clause of the § California He explicitly (a)(18) Constitution. argue declines to that section give 190.2 subd. fails to adequate proscribed (Cf. notice of criminal conduct. Superior (Engert) v. Court (1982) 800, 31 76].) Cal.3d 797 Cal.Rptr. P.2d [183 647 190.2, (c)(4) 4Former section designated subdivision as a special circumstance that “The willful, murder was deliberate and premeditated, and involved the infliction of torture. For section, purpose of this requires torture proof an intent to inflict extreme pro 1977, (Stats. 316, longed 9.) pain.” ch. §
262 torture, infers intent change a
guage describing appellant legislative Court (See, Superior of the meaning Whitley circumstance. special e.g., 75, infers an intent (1941) 449].) Cal.2d he 18 79 P.2d Specifically, [113 intend inflict torture to eliminate the the defendant requirement that and prolonged an or acts extreme causing definition torture as act victim. circum of the new special asserts the elements pain Appellant is inflicted— stance—an intentional in which extreme killing physical pain capital are basis for illusory separating limitations. Neither a provides crimes from other to the defendant’s murders which is rational and tailored (1982) 458 (see, Florida and moral Enmund v. personal responsibility guilt, 1140, (1972) 3368]; Georgia U.S. 782 Furman v. L.Ed.2d 102 S.Ct. [73 238, 392, 346, (conc. 408 313 opn. U.S. S.Ct. L.Ed.2d 92 [33 2726] White, J.)). not a require does
Appellant’s claim circumstance special “inten intent kill is words “intention” specific easily refuted.5 The of mind tional” are used a state the Penal Code to describe throughout a a causing which defendant for with the desire acts purpose result. particular malice, state
The term “intentional” is section 188 to define used in (“[Malice] mind is which express renders an unlawful murder. killing when there to take unlawfully away is manifested deliberate intention of a circumstances of ”) life fellow It 10 special creature. is used in was inten- (a). section “The murder (a)(1): subdivision subd. (E.g., so fundamental tional and carried out for The concept financial gain.”) that Carlos v. Superior Court 190.2 must this section (a)(17) court held that subdivision 862] (Id., to kill.
be construed to intended require proof that defendant p. relies,
People v. Velasquez, appellant Cal.3d upon the killer showing did hold that an may intentional killing proved when acted section 188 with malice. Malice is under implied implied base, for disregard “the defendant and with wanton antisocial motive life, it human does an of probability act that involves high degree will result in death.” Thomas (People *15 a to be 1].) result
P.2d that Velasquez reiterated simply “‘[f]or know, to the result caused the actor must either desire “intentionally,” (26 Cal.3d the will a substantial that result occur.’ certainty, [Citation.]” at p. misleading, ap was special that on the circumstance arguing 5When the instruction requires special circumstance makes the inconsistent assertion that the
pellant himself kill. finding express of intent to an 263 of of murder in lieu Nor does the intentional subdivision’s employment willful, reduce the culpa- deliberate and murder necessarily premeditated to the first of the state of a defendant. bility According mental capital of are to (a) only subdivision circumstances special applicable paragraph Thus, the cases where the found of first murder. degree defendant is guilty willful, defendant must have either a deliberate and pre- be found to had kill, historically meditated intent other mental state which has or some 189; (See, been People Wiley, deemed to be equally culpable. § 162, 170.) however, torture, The definition of a more difficult presents prob of an proof lem. that the 1978 statute intentional urges requires Appellant in victim which the is conscious to killing sufficiently subjectively experi ence the such a inevitably precedes extreme which violent death. Ac pain (a)(18) to his subdivision does not that the interpretation, require cording defendant have an intent to inflict torture which is distinct from the intent to kill. He the urges further that victim’s is required proof suffering either for circumstance because meaningless purposes it is charac special teristic of most murders or is because it impossible of depends upon proof the the subjective deceased. impressions As interpreted he be asserts the circumstance would capable to vir special application intentional, tually murder.6 any degree first 6Appellant by relying on interpretation principles statutory reaches his two construction. First, legislative body wording aware of the presumes he the section 189 and former (c)(4) (Domino section Superior (1982) 1000, subdivision Court 129 Cal.App.3d 486]) 1010 existing Cal.Rptr. judicial as domestic [181 well as decisions the interpreting sections, special circumstance light statutory and that it amended the statute in of such (See, (1975) 831, language judicial Estate 14 decisions. Cal.3d 837-839 [122 of McDill 754, 874]; Cal.Rptr. Phyle 134].) 30 P.2d re Cal.2d Then P.2d he applies changes principle substantial are in statutory language made “[w]hen it is usually particulars intended alter the law in inferred that the lawmakers those affected by (Palos Faculty changes.” such v. Palos Verdes Verdes Assn. Peninsula Dist. Sch. Unified 1155].) General, hand, Attorney The the assumption change on the other asserts that in that a language strictly law legislative applied evidences intent alter the cannot be the 1978 special by through it was process because enacted than circumstance statute initiative rather urges, Legislature. process, he The initiative not one in which words deleted are Therefore, from surgical precision. change statutory statutes with in the language should literally not be so as to result an construed unconstitutional statute. initiatives are We in California written and enacted benefit recognize that without the debates, negotiation processes other hearings, by itself Legislature which the informs may Thus there of its actions. be some argument ramifications some basis for the guide courts their efforts principles particular to ascertain intent of through legislative process force statutory may carry enacted the same provisions to an logic applied initiative measure. when recognized The have not heretofore different enacted interpreting courts statutes rules initiative, however, and we do not now to do so might appropriate decide it whether presumption a valid legislating body case. to enact some future intended statute to measures enacted applies Legislature. initiative as well as those enacted
264
however,
because it is estab
avoids
crucial
Appellant
inquiry,
“
inter
terms of
statute are
fair and reasonable
lished that where
‘the
a
of the Con
with the
meaning
requirements
a
consistent
pretation
of
capable
stitution,
than another
con
meaning,
that
rather
given
statute will
Dist. v.
(San Francisco
School
flict with the Constitution.’”
Unified
937,
309,
669],
479 P.2d
Cal.Rptr.
quot
3
948
(1971)
Johnson
Cal.3d
[92
349,
206].)
(1936) 5
353
v.
Cal.2d
P.2d
Legg
Los
ing County
Angeles
[55
to enact
legislative body
that the
intended
This
presumption
follows from the
been
to initiative measures
statute,
has
applied
a
presumption
valid
Court,
(See,
v.
e.g.,
as
enactments.
Carlos
Superior
well as to legislative
etc.,
147-148;
131,
City
Assoc. Home Builders
Inc. v.
35 Cal.3d
supra,
Livermore,
582, 598.) The United States
Court
Supreme
Cal.3d
18
supra,
in favor of a construction which
a stat
rule
upholds
has
that the
explained
where a
of two
mean that
statute
susceptible
must
validity
ute’s
“plainly
and doubtful constitutional
constructions,
which grave
questions
one of
avoided,
of which such
are
our
is to
questions
duty
arise and
other
rel
Gen. v.
Atty.
States ex
Delaware and Hudson
(United
the latter.”
adopt
836, 849,
527];
366, 407-408
L.Ed.
29 S.Ct.
(1909)
Co.
213 U.S.
[53
Court,
35
148.)
Cal.3d at
quoted
p.
in Carlos
Superior
v.
(1976)
859, Georgia (1980) 446 420 Godfrey 96 U.S. S.Ct. [64 2909] that 398, indicate L.Ed.2d 100 S.Ct. appellant’s interpretation 1759] (a)(18) would about present significant questions section subdivision as a capital punishment Gregg of the statute law. In constitutionality find unconstitutional on its face Code Court Georgia declined Supreme (1978), which 27-2534.1(b)(7) permitted capital punishment section vile, wantonly or horrible outrageously murder which “was or inhuman mind, torture, an to the depravity aggravated that it involved battery that it court reasoned even though arguable A victim.” plurality mind or an depravity aggravated there any battery, murder involves Court of Supreme Georgia adopt would assuming was no basis for constitutionally suspect (428 construction. U.S. such an open-ended Stewart, Stevens, JJ.).) p. Powell and (opn. 201 L.Ed.2d at p. 890] [49 Supreme States Court reversed sen United a death Four years later (b)(7) 27-2534.1 to section tence because the Georgia imposed pursuant construction of the constitutional statute courts had not applied 446 U.S. Georgia, supra, other cases petitioner. (Godfrey the statute to had construed require showing Georgia Court Supreme 131, 79, 147-148 (See, Cal.Rptr. Court Superior e.g., Carlos v. Builders, etc., City Livermore Inc. v. 862]; P.2d Assoc. Home 1038]) and governs A.L.R.3d this our principle resolution of this case.
265 mind, battery torture, an aggravated the offense had involved depravity victim, Ga. 718 (1976) 237 (Harris or v. State [230 all three factors. see, 637]; 446 1]; S.E.2d S.E.2d Ga. Blake v. State 292 [236 case, Godfrey’s 406-409].) at But in U.S. L.Ed.2d at pp. pp. 429-432 [64 No claim was (b)(7). ... courts did ... so limit Georgia “[t]he § made, com us that the petitioner in the before suggests, record nothing or, fact, in mitted an his or mother-in-law aggravated wife battery upon their deaths. caused either of to any injury preceding them suffer physical Moreover, the court, jury—and told the trial repeatedly prosecutor did not the trial the murders judge wrote in his sentencing report—that ’ Court involve Supreme ‘torture. said on Nothing appeal by Georgia circumstances indicates that it view of the evidence. The took a different case, Su therefore, Georgia this out do not laid satisfy criteria (446 Court at preme p. itself in the Harris and Blake cases.” U.S. [64 408-409].) L.Ed.2d at pp.
In answer to Court could of whether the Georgia question Supreme be said to “outra- have phrase constitutional construction applied vile, or geously high horrible inhuman” to wantonly petitioner, court crimes cannot concluded the court had “The Georgia not: petitioner’s said to be have than materially ‘depraved’ reflected consciousness more that of any of murder. His were killed person guilty instantaneously. victims him were members of who were They family causing his [Fn. omitted.] acknowledged extreme emotional trauma. after he his Shortly killings, certainly and the These factors responsibility heinous nature his crimes. But, as was said
did not remove the from the acts. criminality petitioner’s Florida, 393, 402, U.S.-349, in Gardner v. 97 S.Ct. L.Ed.2d 1197], it ‘is community of vital to the defendant and importance reason any decision to rather than impose caprice or emotion. death sentence ’ [1] That cannot be be, appear said be, here. based on There case, is no this in which the death principled way distinguish (446 U.S. at not. . .” from the cases in it was . imposed, many Blackmun, Stewart, Powell 409], 432-433 L.Ed.2d opn. at pp. p. Stevens, JJ.) special California’s torture-murder
Appellant’s proposed interpretation Godfrey. under significant questions circumstance constitutional presents murders, pre- that most This court has observed on numerous occasions v. Wiley, (People the death of the victim. severe sumably precedes pain 173; p. v. Tubby, supra, 18 Cal.3d at p. killing an intentional Thus, requires only circumstance which special of application would capable which the victim suffered extreme pain intentional, exception with the possible murder degree first virtually any Such was instantaneous. a dis- death those occasions on which the victim’s *18 tinction have to may nothing do with the mental state or of the culpability defendant and would not seem to basis for provide principled distinguish- murder from ing other murder. capital any
If these about the questions constitutional of the statute validity be may avoided an alternate adopting construction which is consistent with the statutory language and it is our to the purpose, alternate construction. duty adopt (Car Court, v. 131; Superior 35 supra, In re Kay los 930, 686, 1 Cal.3d 142].) 464 P.2d Cal.Rptr. [83 alternatives to considering appellant’s we are interpretation guided by First, several principles. this court has that it recognized may look to the “common and understanding and to practices” “any demonstrably established technical or common law of the in meaning language question” in order to determine whether the statute is certain to meet sufficiently the constitutional of due requirements of law. v. process (People Barksdale 320, 8 Cal.3d 1, 257].) 7, Cal.Rptr. Section subdivision 16 echoes this when it principle directs that words which have peculiar acquired in the law be appropriate meaning construed ac to that cording meaning. This court has that the recognized legislative the has to define body power torture for of the purposes circumstance special in a manner which differs from its definition under section so long as statute is resulting Robertson, within constitutional v. limits. {People 21, 51.) However, 33 Cal.3d it should not presumed intends to legislative body overthrow long-established law un principles intention less such is made to clearly either appear declaration express or by necessary (Fuentes implication. Comp. Workers’ Bd. Appeals (1976) 449].) 547 P.2d The were, effect of the purpose 1978 initiative to the according which legislative analysis in appeared the voters’ to increase the pamphlet, penalties murder, first and second degree to list of expand special circumstances and to revise the law pertaining matters considered at the of a (Ballot Statute, trial. phase capital Initiative Gen. Pamp., Elec. (Nov. 1978) Prop. Nothing or analysis in the arguments of the proponents initiative makes any reference to the effect of purpose in the specific changes torture-murder We circumstance. are thus special left to discern what legislative intent we can from the of the sub language division, its scheme, relationship its relation larger statutory the recognized meaning terms used.
The key meaning circumstance must lie in the use special and definition of torture, the word which has a well-established meaning the decisional above, law of this state. the rules set forth we are Applying (a)(18) subdivision to conclude electorate enacted compelled of tor- meaning intended established judicial so much incorporate the enactment. ture as language inconsistent with specific pain, severe inflicting “Torture been or process has defined as ‘Act confession, (Web or in revenge.’ as a in order to extort esp. punishment, was appro definition (2d Ed.).) dictionary ster’s New Internat. Dict. its opinion this court in
priately enlarged upon by original *19 Heslen, 21, that definition words: ‘Implicit 163 P.2d 27 in the following addition suffering in to is the of to and pain an intent cause requirement wishes is, alone. He to death. That the not with killing killer is satisfied victim, his and on, from execute or something extort vengeance punish, course, the victim suffering, or the and dies. the as result of inflicting pain 52.)” (See (People 27 Cal.2d v. rehearing, . . .’ of that case on disposition 77.) 34 Tubby, Cal.2d at supra, p. is murder which perpetrated
Penal Code section 189 makes a
by
The essential elements of
of torture a
of the first
the
degree.
means
murder
(1)
the death must involve
are: “‘.
. .
the act or
which caused
crime
acts
death,
must commit
(2)
of
the defendant
degree
of
and
such
high
probability
for the
suffering
the
and
purpose
act or acts with
intent to cause cruel pain
extortion,
or
other sadistic
revenge,
any
purpose.’”
of
persuasion
{Peo
need
162, 168.) The defendant
not have
Wiley,
v.
18 Cal.3d
an
supra,
ple
may
of murder
be supplied
to kill the victim—the malice element
intent
by
of death
act
of
which
probability
an intentional
involving high degree
is
v.
(People
with
for human life.
disregard
committed
conscious
Mattison
185,
177,
193];
4
P.2d
(1971)
People
Cal.3d
481
183
v.
Cal.Rptr.
[93
161,
546
(1976)
P.2d
This court has observed that “The con this of murder was type of its establish that categorized struction language the intended the means first murder because Legislature as degree by to the premeditation the was killing accomplished equated which and reprehensible other murders to sufficiently deliberation render con is A murder torture first murder. degree stitute considered murder of because types the most among reprehensible calculated death, because greater acts causing simply nature culpability are pain suffering in which caused great be attached to murder could 539, 544-546 v. 16 Cal.3d Steger [128 victim. (People v. 1206].)” Wiley, (People supra, 83 A.L.R.3d 546 P.2d added.) 168-169, italics second Cal.3d pp. inflict
It is thus that the intent to on suffering torturous apparent pain victim is at the heart first crime of murder degree perpetrated As a on corollary torture. the acts and intention emphasis it has been victim held that awareness perpetrator, long pain by not an element first murder torture. degree (People Wiley, supra; 8]; v. Bender People Tubby, P.2d 51].) In the court Tubby observed that “[i]n whether the murder was means of determining torture perpetrated by must rest on suf solution whether assailant’s intent was cause cruel attack, on the part object of the either for the fering purpose extortion, revenge, persuasion, satisfy some other untoward propen The test cannot be whether the sity. victim suffered severe since merely pain in most (34 murders severe death.” Cal.2d at pain precedes presumably p. Wiley appellant that actual awareness the victim argued pain by *20 contention, an element of murder torture. court
is The this stat- by rejected to measure the of if ing “[attempts amount suffered pain, any, by acts, victim], victims of torturous some of whom like William may [the been rendered have insensitive to alcohol or pain drugs, others of whom have mercifully may been rendered at the of quickly unconscious outset assault, futile, not homicidal to be but only are promises unnecessary. [szc] The did not Legislature make awareness of actual an element of torture- pain murder. it Although has been assumed in past opinions torture-murder victim cases that the felt it does not probably follow that pain, awareness is an element of the pain offense. The murderer who exhibits ‘the cold- blooded intent to inflict for not pain personal gain may satisfaction’ assert victim’s condition as a fortuitous defense his own deplorable acts.” Wiley, v. (People supra, 173.) 18 Cal.3d at p.
Just as the victim cruel proof experienced pain required, of the victim’s nature wounds is not determinative. While the severity of injury may provide the basis for an inference that the killer harbored torture, intent it required does not necessarily that conclusion. compel v. (People Steger, supra, 16 Cal.3d at We have reversed p. convic- based tions on a torture-murder theory spite the extreme gruesomeness the crime where the evidence showed that the resulted from “an killing of violence” or explosion “an act of animal when fury inhibitions produced were removed by alcohol.” 34 (People Tubby, v. Cal.2d at supra, pp. 77- 78; v. Anderson People , 63 351 763 406 P.2d Cal.Rptr.
43].) murder,
We have that when seen torture is the means of committing first But murder is has inde- degree. meaning of torture concept
269 a first whether to determine of its role in death. order causing pendent be must first occurred “the which question murder torture has degree the statute. meaning ‘torture’ within the answered is whether there was delib- without on another It is to inflict severe and possible prolonged pain section 189.” torture under eration or but it not be may premeditation, 539, 546, fn. 2 (People Steger, supra, 1206].) A.L.R.3d description
The in its circumstance was special explicit within the murders the torturous intent which certain first brings degree inflict ex of the death an intent ambit law: statute required the torturous with treme This definition was consistent pain. prolonged accord of torture intent which is a murder means present perpetrated by 546. Steger, Cal.3d 539 ing page law, hand, intent any on the any other omits description than intent to defines (a)(18) purposes other kill. Subdivision torture how no matter the section as “the infliction of extreme pain, physical its duration.” long to foreclose body
It seems clear that this meant language legislative to inflict to have intended requirement defendant any proved excruciating but (a)(18) under subdivision which is pain; pain prolonged This does not extend of time is sufficient. lengthy over a period *21 expanding is of consistent with the known interpretation legislative purpose any significant reach of California’s death law does not raise the penalty question. constitutional of subdivision
It seems also that the for defining torture language purposes of this focuses on the (a)(18) significance victim’s of experience pain. does is the as ap- however. It is to read statute ambiguous
focus possible conscious, experience to of the victim’s psychological pellant, require proof But irrelevant. while state of rendering of the mental the pain perpetrator of construction an afoul basic rules such would run of three interpretation we long-established which have discussed It overthrow the above. would result, torture, grave ques- of lead and raise definition to a absurd possibly tions as to of validity the constitutional the statute. rejected Cal.3d this court People Wiley, explicitly v. aware be to have been
the that a torture victim must theory proved be which would an endeavor extreme inflicted the torturous act as pain of mind the torturer—the futile is the state of both and unnecessary. “‘[I]t which to satisfaction’” personal gain blooded intent inflict pain cold afore- who kill with malice murderer from others apart sets torture and makes murder torture one of the thought most crimes reprehensible (18 173.) that at may be committed. Cal.3d This conclusion flows from p. court’s Tubby, supra, 34 it is explanation intent make the victim perpetrator’s suffer cruel addition to pain death which element of torture. quintessential torture,
In addition from the settled definition of re departing of the subjective of each individual victim quiring proof experience might lead to an and thus absurd impossible urges result. Appellant per ception of is a highly an pain personal experience depends upon individual’s cultural learning, attaches to the situa meaning person received, tion which the stimuli are and other factors which are physical Bresler, unique functioning each individual. (Citing, Free Yourself 56; Melzack, From Pain at The Puzzle of Pain p. pp.
29.) Thus, the law cannot on rely a direct appellant argues rationally causal between a wound and the victim’s relationship physical experience pain. statement, Unless be it can shown own state person’s proof mind be must made of an from necessarily by way inference a person’s actions or the circumstances A surrounding them. murder victim is neces-
sarily direct of his or incapable providing proof her experience. Appel- lant’s of the statute would thus lead interpretation absurdity re- which is quiring proof virtually impossible.
Finally, appellant’s interpretation—by omitting that element which has been historically considered render torture murder more reprehensible than other murders and an element which inserting may incapable proof—raises significant questions about the constitutional validity circumstance aas rational basis for special those distinguishing murderers who deserve to be considered for the death from those who do not. (See, Godfrey Georgia, supra, U.S. We cannot assume that such electorate intended a result unless such a is clear from purpose *22 of or some statement intent from the or express wording necessary impli- of cation the terms of the statute.
We have observed the dearth already of evidence legislative of intent which particular alterations accompanied torture/murder special (ante, 266-267.) circumstance We find neither nor pp. express words that the be necessary statute construed to implication according appellant’s interpretation. There is instead a reading of the which is statutory language reasonable, more which with the comports stated of the initiative purpose to the death expand application which results in a penalty, statute our to duty which is It is this constitutional. construction in order adopt to of this validity the constitutional enactment by electorate. preserve all, is such well- intent First of the torturous perpetrator in this body cannot the legislative that we believe significance established circumstance. from the special intended to remove the requirement instance to which class of murders use of the term torture to describe the very The the statute a requirement into necessarily imports the subdivision applies the victim to suffer pain intent to cause have the sadistic perpetrator to death, from the intent is distinct in addition intent pain 72, 77.) victim’s Tubby, supra, death. (E.g., cause of extreme not believe of the infliction Secondly, we do that proof proof necessarily encompasses intended to pain encompass physical means to inflict commonly victim. To of the subjective experience 1974).) (See, (2d ed. Webster’s New Diet. college to suffer. World cause Pain is com to inflict means to cause someone to suffer pain pain. Thus or mental discom understood describe a state of either monly physical argument Whatever the scientific {Ibid.) merit to appellant’s fort. can that occurs be measured only something
extent reference pain mind, infliction of physical of the extreme statutory in the requirement ex with the rather than the mental concern emphasizes physical pain encompass victim. The evident the statute purpose of perience in which the which were acts killings perpetrator intentionally performed cause extreme and which were calculated to the victim physical pain to death. inflicted prior sum, 190.2, we find that the words subdivision used in section must understood in of torture.
(a)(18) the established light meaning murder committed of a Proof under the circumstance special torture-murder 190.2, murder, requires proof (§ (a)), therefore of first subd. degree proof 190.2, (§ the defendant intended to kill and to torture the victim subd. and the
(a)(18)), infliction of an act victim. living extremely painful upon The (Ibid.) circumstance from murder special is distinguished under (a)(18) section torture 189 because under section subdivision must the defendant have with the acted intent to kill.
II trial court instructed the to the standard definitions jury according murder, first murder degree per- deliberate first premeditated degree torture, means of murder. it denied and second When petrated degree *23 the defense’s motion to strike the circumstance as special unconstitutionally the court announced it would read vague, the circumstance to special require of an intent to The inflict torture. instructed the proof court for pur- jury of the poses special circumstance “. . . To the infliction of tor- prove
ture the intentional of be infliction extreme no pain proved must physical matter how long (CALJIC modified.)7 its duration.” No. 8.81.18 as
Appellant that there between asserts were inconsistencies apparent this on instruction the of in findings circumstance—which special required tent to kill and the the under section by victim—and instruction suffering 189—which did not intent to kill but did intent to cause cruel require require and He court failed to pain suffering some sadistic claims the purpose.8 between murder adequately explain degree the the difference first jury by the This, torture and circumstance. he have special argues, inevitably must led to confusion in to the the minds of the on a matter vital judgment jurors and is reversible error. (.People (1943) Dail Cal.2d 828].) however, Here, the was the trial jury throughout proceedings reminded of the difference between a verdict of murder a verdict on first and degree circumstance. The was voir alleged special during difference explained dire, in the court’s was arguments formal instructions and referred to both a first counsel. must find they degree instructed that the truth of murder section 189 before could consider pursuant they circumstance. were Written court’s instructions avail- special copies able to them (22 642) deliberations. the Dail during Unlike case relies, which upon appellant jurors giving were misled one by erroneous and one They correct instruction the same were covering subject. and to the law clearly correctly instructed dis- according applicable tinct of first issues murder and murder torture under sec- degree involving (a)(18). tion subdivision circumstance, 7CALJIC No. special 8.81.18 as modified reads: “To find referred torture, true,
to in these instructions involving following as murder is each of the infliction proved: facts be must intentional, “1. That murder was “2. That murder involved infliction of torture. torture, prove “To pain infliction physical the intentional infliction of extreme must proved no matter long how duration.” its 8The degree standard instruction given on first murder torture was follows: as perpetrated by “Murder degree. torture is of the first murder “The essential elements of a murder caused the such are act or acts which death high death, must degree involve probability must commit such defendant act or with the acts intent pain suffering revenge, to cause cruel for the purpose extortion, persuasion any or for purpose. sadistic necessarily “The crime of murder require any proof torture does not that the defendant deceased, kill the necessarily require any intended to nor does it proof that the deceased suffered pain. you beyond find “Unless a reasonable doubt that the insertion of the stake into the rectum ” contributing was a you deceased cause of death cannot find murder torture.
273 m to make “special in a case
Section the jury capital 190.4 requires here The jury circumstance. on the truth of each finding” alleged special found it to be they returned their verdict on form which stated the provided exists, the involving wit: murder true “that the circumstance special this Appellant argues infliction of torture in the information.” as alleged statute. verdict was not to meet the requirements sufficiently specific We do not agree. 190.4, “Whenever circumstan- (a) special
Section subdivision provides: .. the defendant of first guilty ces . are and the trier of fact finds alleged murder, on the truth finding the trier of fact shall also make a degree special of the truth of any of each The determination alleged circumstance. special trier of fact on the or all of the be made by circumstances shall special held to subdivision evidence at the trial or at the presented hearing pursuant to whether a (b) [|] of section of a reasonable doubt as special 190.1. case true, that is circumstance is the defendant is entitled to a finding [sic] each circum- true. The trier of fact make a finding special shall special . . . .” stance is either true or not true charged asserts that with the synonymous the term
Appellant “special finding” of Civil Procedure verdict” defined in section and Code “special find 624 and 625: “A verdict is that which the by jury sections special facts to the court. It must conclusions only, leaving judgment present evidence, them, not the evidence to prove of fact as established as that remains nothing and these conclusions of fact must be so presented 1152; (§ but them.” the court to draw conclusions of law upon op- Proc., identical.) ver- 624 is Such special erative Code Civ. language § “must, . . . and not generally find the facts and specially dicts expressly to refer the Court must the facts so as [They] distinctly present impliedly. (Breeze . .” v. Doyle of law them . . questions arising
clearly upon 101, 105.) Cal. must on all the issues (1861) They by presenting “pass (In of fact on all” re Sanderson 74 Cal. conclusions bearing (italics fact P. and “should include all questions supplied)) 753] (People to determine cause.” pleadings necessary raised 463].) Phone Cal.App.2d claims that the verdict returned on the circumstance fails Appellant special with these it contains no reference to two comply because requirements, (a)(18): of the essential elements section subdivision required murder was intentional and that the victim extreme experienced physical 190.4, however, Section does not direct the pain. return a special *25 verdict, aas of the of that section with the comparison language language of sections 1150-1152 demonstrates.
Section criminal 1150 the in a a jury case to render requires general verdict, court, that in a when “except are in doubt as to the superior they libel, effect legal of the facts a trial for find proved, they may, except upon verdict.” special Section 1152 defines a verdict as “that special the find the jury facts the It only, to the court. must leaving judgment evidence, the present conclusions of fact as established and not the them, evidence to and these prove conclusions of fact must be so presented as that nothing remains Court but to draw conclusions of law upon them.” It has been held that a court of either may party upon request direct the jury they have discretion to in a verdict bring special provided it makes clear that such are within the discretion. findings jury’s absolute (People (1975) Mardian 47 269].) Such Cal.App.3d Cal.Rptr. [121 verdicts have been used to ensure that a makes the jury unanimous proper finding to sustain a v. Bratis required conviction conspiracy (People 45]) Cal.App.3d be used to establish Cal.Rptr. may ag (See, offenses or enhanced gravated v. Beamon punishment. 625, 629, fn. 2 A 905].) 504 P.2d special
verdict short conclusions of fact and to the court the presents leaves task of law and drawing conclusions them where rendering judgment upon (§§ is unable to jury do so. however, In a case tried before a capital it function jury, jury’s is reach a conclusion as to whether or not the circumstance charged special is true on which by applying legal principles are instructed the evi- they (§ 190.4.) dence to them. If presented there is doubt a reasonable as to its truth, “the defendant is entitled to a {Ibid.) that it is not true.” If finding unable is to reach a unanimous jury verdict either that one the special is true, circumstances true or that none of them are the court is directed to dismiss that another to jury impanel the issue of circumstan- try special ces. If the verdict, second jury unable to similarly reach a court may third, itself, or the issue impanel try strike cir- effectively special cumstance (by defendant to the term sentencing for first degree murder Thus, without special circumstances). {Ibid.) section 190.4 does not con- that a template will return the kind jury of special verdict in section provided 1152.
The evident of section purpose (a) is to subdivision require to make a “on the truth special finding of each circum- alleged special stance” which is from their verdict separate of first (Italics murder. degree Because more than one supplied.) special circumstance bemay but charged, a unanimous on one of finding guilt them is before required the offense circum- crime, on each special becomes verdicts capital particularized statutory stance what the are essential. is served But statutory purpose each circum- truth of calls for: a of the truth or lack of language finding stance, does not of the is based. statute facts which that finding upon verdict stat- employ special or serve the terminology purpose *26 utes.
Penalty Evidence Phase At the as evidence aggravation offered penalty phase prosecution testimony activity by two criminal regarding appellant instances of prior which involved the use of force and violence.
Susan T. testified that awakened as she slept one in 1974 she was night on her couch a her repeatedly man who crouched over her and stabbed throat, face, in the was not and arms. When she realized attack eye dream, a bad knife severed her simply she The assailant’s began fight. neck, vein. attacker in the As blood from her she kneed the
jugular spurted outside, and he admin- groin fled. She to walk where managed neighbor istered aid and called an T. had suffered 20 to emergency ambulance. Ms. wounds, severe wounds to one and was stabbing including eye hospital-
ized for three to four weeks.
The from a light and from the television which were on enabled Ms. lamp T. to see her attacker’s face and the clothes he was She testified wearing. him the assault her identified throughout assailant was She smiling. and learned that his name was preliminary hearing subsequently appel-
lant’s.9
James B. testified that aby in December 1980 he was assaulted group in the He was beaten and prisoners tank holding Orange County jail.
forced to submit to their each of them. B. demands that he orally copulate testified that forced to appellant was one of those whom he was copulate.
Appellant then took down unsuccessfully, B.’s and so- pants attempted, domize him. B. denied him the incident but had hit appellant during testified that “he seemed the time.” to be a nice most of guy pretty F.,
John who had admissions provided important testimony appellant’s trial, at the details of sexual guilt phase testified to additional degree 9The record convicted of first appellant shows that as a of this incident result burglary deadly weapon and deadly weapon findings and assault with a with of use of a great bodily years infliction term of 15 to life on injury. prison He was sentenced to a jury, April presented 1975. This evidence but the fact of conviction was testimony appellant previously brought had been out in the of defense wit imprisoned was argument. prosecutor prior nesses. The referred to the fact of a conviction his B.’s, of B. F.’s unlike testimony, assault as the insti- portrayed appellant of the incident. F. testified that alone and gator dragged attacked appellant the cell’s where B. into bathroom he forced B. to oral copulation perform then sodomized B. who protested loudly. Other then forced prisoners engage B. to oral to F. face wore According copulation. appellant’s total look of the act of desperation during sodomy.10 presented as evidence in of his Appellant mitigation testimony step- and three father social workers who had had known his witnessed family the difficult circumstances his childhood adolescence. picture drawn is of an witnesses isolated and man who disturbed tried young to maintain outward appearance of while with struggling happiness conflicts created an unusually difficult situation. family *27 mother was described
Appellant’s sexually neglectful as promiscuous, her children six and from suffering alcohol-related She married problems. and nine times had additional extramarital affairs. The were placed children in on foster care temporary number of occasions when social workers found them alone and uncared for. was the “misfit” of the was
Appellant apparently subjected who family abuse to verbal and by everyone abuse one uncle. physical Appellant mother, able to win was not from he his even did well approval in though and earned A’s in school his classes. There was evidence that straight ap- was aware—at times his activities. painfully—of mother’s sexual pellant workers who talked with in the Social about his role appellant family suffered appellant believed conflict between his of love deep feelings and his mother. felt They exhibited a anger appellant degree desperation to need his and please in his that others on that need peers played goading mischief own into for their him purpose. on for a left probation juvenile
While theft offense Utah petty appellant Reno, to in without live with an At the permission Nevada uncle. urging officer, his he was to granted probation probation permission complete Nevada, where his uncle would with and an him ade- provide employment situation. living quate 10Appellant’s objections testimony prejudicial F.’s cumulative than that and more (Evid. Code, probative 352) theory were that F. able than B. overruled on the was better § many people see how attorney argued were The involved the assault. district also that reluctant degree by appellant
B. was to admit appellant force used and to admit that reasons, penetration during sodomy variety had achieved possibly including for a fear and appellant perceived embarrassment at a testimony loss of manhood. The record of his supports testify the contention that B. was reluctant by appellant about acts of violence sodomy and about the but not reveal does the reason. When he was 17 After basic the Marine appellant joined Corps. training he visited Utah with his former social service workers how impressed well and he in a moment seemed. But his saw happy appellant stepfather anguish indicated to that had not been com- family him situation resolved. pletely
The inherent prosecution’s stressed the penalty argument aggravation the circumstances of of criminal this and the other incidents killing activity force involving and violence. The district characterized attorney appellant as a “human who would be inside the predator” as walls of a dangerous outside, as he had been belittled the evidence of prison appellant’s unfortunate background which had been offered in To the mitigation. con- trary that the three workers who prosecutor suggested social had dem- an onstrated interest in welfare had more than appellant’s ade- provided quate opportunity incentive for to overcome his familial dif- appellant ficulties and that the showed had overcome the testimony appellant negative of his childhood while in the Marine impact circumstances Corps. dis- trict attorney evoke suggested the defense’s attempt sympathy was an really attempt from keep following requirements law. He argued evidence could be of appellant’s background considered a mitigating circumstance if it had some crime only relationship *28 which he was convicted. stressed prosecutor that the statute the decision as to reposes penalty
with the He jury. that the statute directs the to explained jury determine to according the result of the penalty statutorily enumerated weighing ones, aggravating circumstances it and that does not re- against mitigating to jury find quire that beyond rea- aggravation outweighs mitigation sonable doubt in order to return a verdict of death. The acknowl- prosecutor that statute edged permits the to determine whether factors are jury aggravating mitigating and to determine what should be to weight given each factor when to be deciding imposed.
The district then attorney devoted a of his to an major argument portion item item application factors statutory aggravating mitigating (§ 190.3) to the evidence in the case. From each of the potentially mitigating factors of which there was no evidence the district found a attorney basis were (d) 11These in factors section defendant acted under subdivisions influence disturbance; (e) conduct; of extreme mental or emotional in participant victim was homicidal (f) reasonably defendant believed there justification was some moral or extenuation of his conduct; (g) defendant acted under extreme duress or substantial domination of another (h) person; defendant impaired capacity suffered to appreciate criminality or to conform intoxication; conduct to law due (i) defendant; to mental age disease or defect or (j) whether defendant was accomplice or participant. minor to additional argue The lack of evidence that aggravation. acted appellant under the influence of an (subd. extreme mental or emotional disturbance (d)), or acted submission to will (subd. of another or that person (g)), his of his act or conform his conduct capacity appreciate criminality (subd. (h)) to the law was alcohol impaired by all demonstrated that appel lant acted calmly, deliberately of his own free will in the view of the district The lack attorney. reasonable belief in any moral justification (subd. (f)) made the crime And the fact that aggravated. was appellant (subd. himself the perpetrator constituted another factor in (j)) yet aggra vation prosecutor. the trial
Although court had ruled that the Instruction” on the “Briggs Governor’s to commute a power sentence of life without possibility pa- role violated the defendant’s to due right of law and would not be process informed the prosecutor that the Governor given, has the power modify any sentence He then they might impose. asked them not to consider fact in their that deliberations. But in the course of that death arguing was because appellant’s history violence to and after the appropriate prior demonstrated he killing Lingle likely remain dangerous future, the raised the prosecutor of future release: “If possibility you make know, without a decision possibility parole, you there are other victims decision, mean, are to have to going that I pay there are people [f] now, have to do with this decision nothing that have no ability make be in They might be on the—it any input. prison. They might might in Costa Mesa.” somebody close of the
At the district attorney’s counsel argument appellant’s moved new trial because of for a prosecutorial misconduct the Gov- mentioning of commutation and power ernor’s future arguing appellant’s dangerous- *29 the Although ness. court expressed had dismay prosecutor men- the commutation after the tioned court ruled the power Instruction” “Briggs not be would it denied the given, motion. Instead the court admonished the to the disregard district attorney’s comments about the jury Governor’s and stressed that the instructions which would their powers guide delibera- contained tions no mention of such powers. counsel the of
Appellant’s urged members the to use their jury reason and to their hearts show for a fellow human mercy who was not being strong to overcome enough the adversities of his life. He early that acknowledged of none appellant’s evidence any way excused the crimes of which he convicted, had been but it suggested how might explain had come to they He read from The pass. poetry Prophet by Gibran and from Shakespeare, and asked the the jury give appellant lesser of life penalty imprisonment without the of possibility parole.
The revi- (1978 court the accord 8.84.1 instructed with CALJIC jury sion)12 informs and 8.84.2 as of which portion modified removal without the of the a sentence of life Governor’s commute power to a life sentence.13 possibility parole
rv tried in decisions Appellant judicial was several important prior constitu the which critical clarifying are penalty phase procedures We tional of California’s scheme. conclude validity capital sentencing federal the of three of the and the holdings intervening precedents decisions (1978 rev.) provides: 12CALJICNos. 8.84.1 “In all determining imposed you shall consider which is to be on defendant during any which shall part evidence has been received of this case. You con- the trial sider, factors, take into guided by following applicable: account and be the if “(a) present The the circumstances the crime of which the was convicted in defendant proceeding any special and the existence of to be true. circumstances found “(b) presence The or absence defendant which involved activity by of criminal the the or attempted implied of force or or use expressed use use violence or threat to force or violence. “(c) presence The any prior felony absence of conviction. “(d) Whether or not the offense was committed while defendant was under influ- of extreme mental or ence emotional disturbance. “(e) participant Whether or not the victim was a in the defendant’s homicidal conduct or to the homicidal act. consented “(f) Whether or not offense was committed which the under circumstances defendant reasonably believed be a justification moral or extenuation for his conduct. “(g) Whether or not defendant acted under duress or under the extreme substantial person. of another domination “(h) at the appreciate Whether or not time of the offense the of the defendant to capacity criminality requirements of his conduct or to conform his conduct to law impaired as a result of mental disease or defect or the of intoxication. effects “(i) age of the defendant at the time the crime. “(j) Whether or not the an accomplice participation defendant was to the offenses and his relatively the commission of offense was minor. “(k) Any though other circumstance which of the crime even gravity extenuates it is legal excuse for the crime.” provides: 13CALJICNo. 8.84.2 as modified your duty to penalties, “It is now determine which of the death or two confinement in the prison possibility parole, imposed for life without shall be on defendant. state [each] evidence, having “After all of having heard after heard and considered the argu- counsel, consider, you guided shall into applicable ments take account and be aggravating mitigating you upon factors circumstances have been instructed. *30 you “If the aggravating outweigh conclude that the mitigating circumstances circumstan- ces, you However, a impose you shall sentence of if determine mitigating death. circumstances, outweigh aggravating the you impose circumstances shall a sentence of con- prison possibility parole. finement the state for life without the of foreman, your “You shall now retire and select one of preside number to act as who will your deliberations. In order to a penalty, jurors over must make determination to the as all twelve agree. “Any you verdict that reach signed by your must be dated and foreman a form that on you provided be and then shall will return with it to this courtroom.” 280 which two of them are based reversal of death
upon appellant’s compel sentence. The to inform penalty instructions failed phase erroneously ap of the of jury standard before certain pellant’s proof required important evidence of aggravation penalty (People considered v. might properly 21, (1982) 77, Robertson 33 53 Cal.3d 655 P.2d Cal.Rptr. (plur. [188 279] (cone. Broussard)); and 60 of inform the Justice failed to opn.) opn. jury to of its discretion consider element or any background of defendant’s char acter factor in as a error which instructional was mitigation penalty—an (Lockett v. Ohio argument— compounded prosecutor’s closing 586, 973, 989, 2954]; 438 U.S. 604 v. L.Ed.2d S.Ct. People Easley 98 813]); 34 Cal.3d 878 671 misled to make clear that the jury failing “weighing” aggravating against circumstances is not a mechanical numerical but rath mitigating process, er entails jury’s for responsibility determining punish appropriate Brown, ment based all relevant v. upon {People evidence 40 supra, Cal.3d 512, 542). trial, examining
After record appellant’s instruc- totality and the nature of the tions made to the we given arguments conclude jury, errors that these have misled the may as its function and proper a there is therefore reasonable the errors affected the possibility penalty Robertson, (See, v. People (cone. verdict. supra, opn. Broussard); v. 858, 879; Justice People Easley, Cal.3d supra, People Brown, 512, 545, supra, 40 Cal.3d fn. we reverse the Accordingly, of death and remand the matter for new judgment For penalty proceedings. of the trial on court retrial of the we guidance penalty address phase, ap- additional contentions of pellant’s prosecutorial misconduct. Failure Instruct that Other
A. Crimes Must be Beyond Proved a Rea- Doubt sonable Robertson, Cal.3d this court reaffirmed authority line of which holds that at phase capital trial is entitled to an instruction defendant to the effect that con jury may evidence other crimes which are introduced or referred to
sider as ag factors section (b) subdivision when pursuant only gravating of the other crimes is proved beyond (33 commission reasonable doubt. Broussard, (cone. and 60 pp. (plur. opn.) opn. J.).) Al the evidence in consisted though aggravation testimony appellant had two violent crimes in addition of which he killing committed in the convicted instruction mandated present proceeding, Robertson The failure the instruction was error. give was not given. in Robertson that the
We from recognized potential prejudice the fail as to a reasonable doubt instruction other ure to crimes is give especially
281 “ damaging because that of evidence have ‘may particularly serious type be executed.’ defendant should on the determination whether the jury’s impact (P eople v. Polk [(1975)] 63 Cal.2d [443] p. 450 [47 Cal.Rptr. 1, 641].)” 54.) (33 406 P.2d Cal.3d at p. the facts of beyond evidence was the evidence only
This of other crimes The in- of penalty. which was offered killing Lingle aggravation crime present cident Susan T. bore similarities involving significant method of the attack on female in its violent nature and in the extremely victim. of James B. was inconsistent
The the sexual assault testimony regarding and as to the amount of force used contradictory by appellant, degree whether sodomy initiated the was activity assaultive appellant Nevertheless, attorney emphasized achieved or the district only attempted. James B. continued dangerous- incident demonstrated appellant’s as a life it formed an important part
ness even and thus his prisoner life imprisonment that death was a more than penalty argument appropriate other crimes was highly without evidence of dam- possibility parole. to appellant.
aging to Instruct on the Elements the Other Crimes 1. Failure that a of the rule argues corollary Appellant logical legal doubt instruction a rule that the jury reasonable must be must given on the elements of the other crimes. Such a rule alleged has been instructed (1980) in other v. State 245 Ga. jurisdictions. Burger (E.g., established 458 348, 796]; 1981) (Tenn. State v. Moore 614 S.W.2d S.E.2d [265 v. Tahl (1967) this court in rejected by argument This 719, 318, 246], 736-738 423 P.2d where we Cal.Rptr. consid [56 Cal.2d also, (See People Nye scheme. capital punishment an earlier ered However, 356, 467, 395].) 455 P.2d Tahl Cal.Rptr. for the that a court has no sua trial only proposition sponte stand duty Nye as to the elements of all of the other crimes that jury instruct have defendant, We that a at the phase. recognize introduced been reasons, not want the instructions may penalty phase overloaded tactical elements of other instructions on the lengthy alleged a series crimes with fear that such instructions could lead place he undue may because rather than on the central the other crimes question on whether emphasis ante, or die. fn. (People Phillips pp. live should he 423].) the cases do not Phillips, a trial court prohibit from explained we As the elements of other crimes offered on as aggravating factors instructing *32 case an where either the appropriate defendant or the prosecution requests instruction or the such court itself determines such vital to a instruction is Robertson, consideration of (Ibid; the evidence. cf. v. proper People 53.) Cal.3d at a Normally, to instruction p. defendant’s failure request the on elements other-crimes evidence will him aggravating preclude ante, the issue on raising from v. at appeal (People Phillips, supra, p. 25)
fn. claim is thus not before us. retrial of appellant’s On properly however, he the to penalty phase, may rely wish such instruction request the trial court’s preliminary determination that there is substantial upon each (See evidence element of the prove other crimes. alleged People ante, 72; Code, Phillips, supra, Evid. p. §§ CALJIC
B. Nos. 8.84.1 and 8.84.2 misled the the jury regarding scope evidence it mitigating might consider and the balanc- properly nature of ing of the process applied be ultimate decision the at death penalty to fix without possibility parole. or life of district attorney
The evidence of argued could appellant’s background considered as circumstance if it mitigating only bore some to the crime of which he was relationship convicted. Appellant’s argument life of without rather than imposition parole for the death penalty consisted of an for entirely on appeal sympathy based the unhappy circumstances of upbringing. his court instructed the the CALJIC jury 8.84.1, No. language (k) that they could consider “Any
subdivision other circumstance which the crime even it not a gravity extenuates is excuse though legal crime.” The court also instructed 8.84.2, to CALJIC No. according to delete reference to modified governor’s power commutation. 8.84.2, No. tracking CALJIC language section directed: consider, shall take into account and be by the guided applicable “[Y]ou aggravating factors circumstances mitigating upon you have instructed, If conclude you been that the aggravating circumstances out- [f] circumstances, shall mitigating weigh you sentence death. impose However, if determine that the you circumstances mitigating outweigh circumstances, shall a sentence of you confinement in aggravating impose for life state without the prison possibility parole.” this court noted that Easley, supra, of 8.84.1 “CALJIC wording 8.84.1—while potentially confusing. listing variety aggravating factors—does not mitigating explicitly that it may inform consider factor jury any mitigating proffered . ... . . could defendant. reasonably construe [A] instruction’s language permit consideration of circumstances that relate to the only the crime’ and *33 ‘gravity not of circumstances that relate to the general ” character, family (Id., the at background other aspects of defendant. 878, omitted, fn. in italics p. orig.) This limitation on the consideration of evidence in jury’s mitigation in a case penalty capital contravenes the mandate of the federal Constitution. Ohio, 586,
In Lockett supra, 438 U.S. the Court held that “the Supreme sentencer, and Fourteenth Amendments in all but Eighth the require case, kind of rarest capital not be from as a miti- considering, precluded factor, any of a gating aspect defendant’s character or record and any of the circumstances the offense that the defendant as a basis for a proffers less than death sentence .... ... statute that the sentencer prevents [t] [A] all cases from capital in to giving independent mitigating weight aspects the defendant’s character circumstances and record and to offense in mitigation creates the risk that the death will be proffered imposed of factors which {Id., in call for spite may a less severe penalty.” at 604, 605 L.Ed.2d at 989-990], in fns. pp. omitted.) [57 italics pp. original, court high reaffirmed this v. Oklahoma holding Eddings 1, U.S. L.Ed.2d [71 S.Ct. a death Eddings, judgment 869]. reversed because the trial was to judge understood the statute preclude him considering accused’s from evidence. The Eddings court ex mitigating as the State not may by statute sentencer plained, preclude “0]ust from any factor, considering mitigating neither the sentencer refuse to may con sider, law, matter as a any relevant evidence. In this instance, mitigating if the trial as judge had it instructed a jury disregard mitigating Eddings on proffered his behalf. . evidence The sentencer . . may determine to be given relevant weight evidence. it But no may give weight [it] such excluding evidence from (Id., consideration.” at 113-114, pp. [its] deleted, omitted; fn. see also v. Florida Barclay italics 463 U.S. 946, 2,
939, 1134, fn. L.Ed.2d 103 S.Ct. (cone, 3430] Stevens, J.).) opn. court, too, has made clear
This constitutional death penalty scheme direct the jury “‘weigh elements of sympathetic must defendant’s ” against those that offend may the conscience.’ background (People v. Rob ertson, 21, 58, v. Haskett (1982) 30 quoting Cal.3d 841, 843 776].) if the must be
Clearly, jury permitted give independent mitigating evidence any of character or on which weight background an accused sentence, for a his life plea must be jury so informed. The bases com- of Lockett and are not Eddings satisfied if mands mitigating evidence is without proper instructions as to admitted how to that evidence. weigh instruction’s deficien
Easley therefore ordered a cure for the prospective (34 878). “In order to avoid cy p. misunderstanding potential future, embodied in trial courts—in on the factor section instructing it (k)—should subdivision consider as may inform factor mitigating ‘any gravity other circumstance which extenuates the crime even it for crime’ other though any is not a excuse legal the defendant ‘aspect defendant’s character or record . . . that prof [the] (Ibid., 10.)14 fers as a basis than fn. sentence less death.’ [Citation.]” In Easley (k)” given conjunction “factor instruction was misleading *34 with an instruction the to specifically jury disregard pity directing penalty 1.00; 1979.) for the ed. (CALJIC defendant. No. 4th The latter sympathy (34 instruction was treated as the more error. Cal.3d at 876- significant pp. 879; see also People (1984) 36 Lanphear Cal.3d 163 [203 1081], statute.) 680 P.2d a case which arose under the death penalty CALJIC No. 1.00 of was not at the trial. given penalty appellant’s phase However, the satisfy court’s silence the does not on of subject sympathy Lockett, the constitutional forth in and requirements supra, Eddings, set supra. (4th 1979) The ed. by standard instruction in CALJIC No. 8.84.2 8.84.1, the in telling to be the enumerated created jurors guided factors by a inference one. strong that the list was an exclusive The statutory jury have might reasonably concluded that the relevance of appellant’s proffered evidence in (k). narrow factor mitigation was limited the The by unduly in fact and prosecutor of Lockett argued—erroneously, light Eddings— that the of be circumstances could considered miti- background appellant’s factors if The standard gating only to the crime itself. instruc- they related tions by the court given misimpression did to correct the thus nothing cre- ated; was, they instead entire phase reinforced it. effort Appellant’s penalty however, to evoke to the jurors for himself sympathy by evidence presenting that he was basic only support familial love and but was in deprived Thus, fact raised in setting. and abusive the physically emotionally Easley error in 8.84.1 alone on the have may jury’s had significant impact determination. error
The related this case instruction compounded closely (CALJIC of section 190.3. No. following 8.84.2 as language modified.)
Section 190.3
that “After
heard and
provides
part
having
pertinent
evidence,
and
and after
heard
having
received all
considered the
(k)”
responded, by
Committee
“factor
redrafting
14The CALJIC
has since
instruction
8.84.1,
(See
(4th
(k)
language.
rev.).)
No.
ed.
incorporate this
CALJIC
subd.
to
counsel,
consider,
and
arguments
the trier of fact shall
take into account
to in
guided by the
circumstances referred
aggravating
mitigating
section,
this
and shall
if the
of fact con-
death
trier
impose
sentence
cludes that the
circum-
aggravating circumstances outweigh
mitigating
(Italics
stances.”
added.)
Brown,
supra,
of section 190.3. The arguments court defendant’s this statute rejected “impermissibly restricts constitutional discretion” jury’s sentencing restricting consideration of evidence of defendant’s background sympathetic and character which (Easley error) is unconnected crimes charged a mechanical confining jury balancing aggravating factors, mitigating its constitutional stripping power conclude does not totality relevant circumstances warrant constitutionally {Brown, death penalty. agreed court p. “a statute would be invalid if consideration of juror interpreted preclude any factors relevant to death constitutionally imposition penalty. Nor *35 would a statute muster if it to render death required jurors pass verdict formula, on the basis of some or if them arithmetical it forced to impose death on basis than own that any other their such judgment verdict was all under the facts and circumstances of the appropriate individual case.” 541, {Id., at p. omitted.) fn. But the court determined that section 190.3 not, not, “need and {Id., 541). should be so at interpreted.” p. to this v.
Pointing prior court’s decisions in Frierson People (1979) 25 142, 281, 587], Easley, 34 Cal.3d at and of supra, p. the decision the United States Supreme Ohio, Court in Lockett supra, 438 U.S. at L.Ed.2d at p. p. 989], (k) Brown that section explained subdivision had previously been to found the and expansion clarification susceptible required by Easley and 282-284, in discussed this at opinion ante. The Brown pages court then the determined that reference statutory to and the “weighing” use of the word “need not be “shall” to limit the interpreted impermissibly scope of context, ultimate discretion. In this jury’s word ‘weighing’ is a for a nature is of metaphor process incapable precise description.
The word connotes mental balancing but not process, certainly one which calls for a mere mechanical of factors on counting each side of the imagi- ‘scale,’ or the of nary arbitrary assignment ‘weights’ them. any Each is free to whatever moral or juror assign value he sympathetic deems ap- to each and all of the various factors he propriate is permitted consider, ‘k’ factor as we have including it. interpreted By directing jury ‘shall’ the death if it impose penalty finds that aggravating factors ‘out- weigh’ statute mitigating, should not be understood to require any juror to vote for the death of the unless penalty upon completion ‘weighing’ pro- cess, he decides that all of the cir- death is the under appropriate penalty factors, cumstances. Thus the deter- the various jury, by weighing simply mines under the evidence which in the par- relevant appropriate penalty (Brown, ticular 542.) case.” at The Brown decision p. emphasized that evidence at a trial mitigating necessarily capable need capital Rather, the offender we his in the abstract. redeeming conduct excusing explained, circumstances must weighing mitigating aggravating occur within without of the two life context permissible punishments: is not between and bad possibility parole good death. balance “[T]he 13.) but (Id., between life and at fn. death.” p.
While Brown held invalid on that it that section 190.3 “is not grounds withdraws discretion from the sentencing jury,” constitutionally compelled statute, (id., 545) at “the language the decision p. acknowledged death,’ and in leave room a sentence impose words ‘shall particular (Id., role.” fn. There- p. some confusion as to the jury’s fore, death trials should the court trial courts future suggested that “instruct the discretion responsibility as its scope (Ibid.) accordance with the set forth in opinion.” principles Brown] [the And of verdicts validity judgment upon declined opinion pass instructions thereafter clarifying rendered without benefit previously case must be examined on but such required, explained prior “[e]ach whether, context, the sentencer have may its own merits to determine been its dis- scope sentencing misled to about defendant’s prejudice cretion (Ibid.) under the 1978 law.”
C. Error Prejudice Instructional from trial, the totality record of of appellant’s
Our examination of the the arguments the of made to instructions and the nature the penalty given have been may case the misled jury jury leads us to conclude that in this as its to function. proper
hirst, were errors especially the instructional important we note that three the consideration of the juror’s here because the affected only instructions well as as mitigation penalty, in the evidence aggravation significant balancing process it nature understanding jury’s of death punishment deserved life to determine whether appellant the jury errors to consider permitted The Robertson evi- without parole. without aggravation finding—as crimes as circumstances dence other a beyond established reasonable evidence doubt law—that the required the At same crimes. time the those pre-Easley committed appellant that that it inform could jury to properly failed con- instruction “factor k” sider offered as a circumstance in evidence only appellant mitigation of these instruc- that at the The combined effect purpose trial. penalty circumstances tions is that the found jury may aggravating have improperly failed to improperly find circumstances. mitigating instructions, There were no such as those suggested supplementary Easley, which would have clarified the discre- jury’s tion to consider unrelated to the crime itself. And the evidence mitigating of the am- reinforced the error prosecutor’s argument by taking advantage in the “factor k” instruction. He to discount biguity urged jury appel- lant’s is an to mitigating evidence as that “just something attempt get you Instead, to feel some to to feel for the defendant.” sympathy, get you sorry know, that, submit “I in order to find prosecutor argued, you you to it find, circumstance, somehow, to be mitigating have it is you got it has something, to do with the crime because something asks [factor k] to, a circumstance that extenuates the of the crime. ...” you gravity In of the absence on the light subject instructions miti- clarifying evidence and the nature of the it is gating likely that the balancing process, was misled as to the of its under jury discretion scope sentencing applicable statutory constitutional and there is a reasonable principles possibility verdict penalty was affected. The of death must judgment reversed. D. Prosecutorial Misconduct in Closing Argument
1. to Governor’s Power Commutation Reference
Prior to at the the trial argument court ruled that it phase would, pursuant and with the appellant’s request prosecutor’s acquies cence, CALJIC modify No. 8.84.2 by of the instruc removing portion tion informing commute Governor’s sentence power (the life without parole Instruction”). “Briggs of this spite ruling discussed the prosecutor commutation power his statement. His closing argument appellant in the might future “in present danger people *37 Costa Mesa” emphasized the significance the information.
This court has ruled that the Instruction” violates “Briggs guar antee of a fundamentally fair which is embodied decision-making process I, I, in article section 7 and article section 15 of the California Constitution. (1984) 800, v. Ramos
(People
The prosecutor’s under Ramos II. The argument improper fact that he referred to the to commute both a sentence of life power without parole and one death does not cure the from the harm presentation Ramos, information. improper (People 155.) v. supra, p. argument was also court’s improper light trial that the ruling Instruction” “Briggs would not based constitutional given objec upon tions not, A appellant. prosecutor may under guise argument, assert as factual matters inadmissible. excluded from evidence because 720, v. Love (People (1961) 777, 56 Cal.2d Cal.Rptr. 366 P.2d [16 33].)
2. Comments on Future Dangerousness
In People v.
Murtishaw
738,
Appellant urges corollary Murtishaw’s holding pros ecutor’s comments on future dangerousness were evidentially unfounded Love, (See 720.) find, and improper. People v. We how ever, the prosecutor’s were within comments this case the proper bounds of to the argument jury. open at the does
Permitting far-ranging argument penalty phase United States Georgia, supra, offend the Constitution. (Gregg U.S. Indeed, 891].) 203-204 L.Ed.2d statute a state requiring of future conduct at the to determine criminal probability Texas (Jurek has withstood constitutional 428 U.S. scrutiny. phase 929, 940, 2950].) L.Ed.2d The prosecutor’s 96 S.Ct. com not based inadmissible evidence of expert testimony pre were upon ments tes is the from the prejudice future It dangerousness. potential dicting a defendant “established expert” may of an and credentialed timony Murtishaw which we held in outweighed future violent acts will commit (29 of aggravation. arguable question relevance such comments’ Cal.3d at p. Evidence Rendered Crime Mitigating That Lack Argument
3. Improper Aggravated *38 absence of certain argued above the noted prosecutor As 190.3, (d), (h)) subds. and showed that (§ factors (g) mitigating potential acted his own he com- appellant calmly, and of free will when deliberately mitted the these fac- murder. The lack of evidence pertaining mitigating tors thus case. rendered each of them an factor in aggravating appellant’s claims section tilt- Appellant unfairly this misconstrued 190.3 and argument ed the jury toward a verdict of death.
Section 190.3 of fact that in the trier provides determining “shall take into account” relevant.” of the 11 enumerated factors “if any The section further all of the evidence and the after provides hearing counsel, consider, arguments “the trier of fact take into account shall and be guided circumstances referred to aggravating mitigating section, in this and shall of death if the trier of fact a sentence impose concludes that the circumstances cir- aggravating outweigh mitigating cumstances. If the trier fact determines circumstances mitigating outweigh circumstances trier of fact shall a sen- aggravating impose tence of confinement state for a term life without the prison possibility of parole.”
The statute does not factors as or designate of the miti- any aggravating gating. “whether-or-not” and used in “presence-or-absence” phrase of the eight subdivisions there be either a or suggests might an presence absence However, of the factors. instruction statutory that the trier of fact consider the factors “if relevant” seems that not all contemplate factors will be relevant in all cases and further that a factor which is not relevant to the evidence in a case should be particular disregarded.
As appellant definition a argues, “aggravation” is circumstance above beyond essential constituents of a crime which increases its guilt or or enormity adds to its injurious Law (Citing Black’s Diet. consequences.
(4th circumstances, hand, rev. ed. 1968).) on the other are Mitigating ones which not although crime, an for or constituting excuse justification bemay considered as or of moral extenuating reducing degree culpa- Thus, {Id.) bility. the absence of automatically would not mitigation render the crime more offensive than other murder of the same any char- general acter. statutory unlikely
Several of the factors are to be mitigating particularly (See, (e) in a case. subds. given especially, present § [whether was a in the homicidal conduct or consented to participant the victim or not the offense committed under circumstances it]; (f) [whether be a or ex- believed to moral reasonably justification the defendant conduct].) To consideration of the absence these for his permit tenuation circumstances would make these circum- as aggravating aggravating factors to most murders. automatically applicable stances
We form of is to con- likely conclude that the argument prosecutor’s fuse the under jury as and meaning “aggravation” “mitigation” should not in the statute and is therefore section It under 190.3. improper be the future permitted.
Conclusion
For the
torture-murder
reasons we have
we conclude that the
explained,
which is
circumstance of the
is
of a construction
special
capable
1978 law
consistent with
and
with the demands
of the statute and
language
purpose
in this
of the United
court
case
States and California Constitutions. The trial
of first degree
instructed the
which found
properly
jury
appellant guilty
and
circumstance
murder
found the
true.
special
However,
the instructions
of conviction is affirmed.
judgment
Robertson,
v.
in error
decisions of People
were
under the
penalty phase
and
21,
v.
Grodin, J., Kaus, J.,* concurred. BIRD, C. tendency . I writebecause I troubled increasing am J this court to statutes. rewrite unconstitutional or drafted improperly 1977, making death statute murder Legislature enacted a (Former which involved the infliction offense. Pen. capital of torture Code, 1258.1) (c)(4); subd. ch. Under p. Stats. § § statute, (1) the murder was was prosecution prove required willful, deliberate, (2) the accused aided or physically and premeditated; by the Chair sitting assignment *Retired under Supreme Associate Justice of the Court person of the Judicial Council. present personally was special 1That statute defined a where defendant circumstance “[t]he death, to cause death and with intent during causing the commission of the act or acts willful, . . murder physically causing aided such death and . [t]he or committed acts deliberate, purposes For this infliction of torture. premeditated, and involved the section, pain.” prolonged extreme and proof torture of an to inflict requires intent statutory are to Penal Code. All further references *40 committed the act; (3) he intended inflict death-causing prolonged and extreme pain.2
The 1978 Initiative Briggs made several to the torture important changes law, circumstance special statute. Under intentional murder any involved the infliction of torture is a offense. Torture now capital “requires of the proof infliction of extreme how no matter its physical pain long 190.2, (§ duration.” (a)(18).) subd.
As is apparent, 1978 no statute that the murder be longer requires willful, deliberate, and premeditated, nor that the accused have an intent to inflict The pain. eliminated. “prolonged been pain” requirement has short, all that the torture is an present circumstance special requires intentional murder in duration, which extreme physical pain, regardless written, inflicted. As is circumstance is special capable application virtually any intentional first murder. degree
This court noted in 131, Carlos v. (1983) Court 35 Cal.3d Superior 151 79, Cal.Rptr. 672 P.2d [197 “Decisions under the Amend Eighth 862] ment have established that a cannot state the death for all penalty impose [citations], murders nor give the jury uncontrolled discretion to select which defendants suffer that Instead, penalty it must standards develop [citation]. decision guide murder jury, selecting victims among from those aggravated cases in which the death would be appropriate. ‘A capital sentencing scheme must . . . a basis provide “meaningful
distinguishing cases in which is penalty] imposed many [the few from cases in which it is 420, not.’” v. (Godfrey (1980) 446 U.S. 427 Georgia .)” (Italics added.) written, . . . As torture circumstance present special Therefore, fails to do that. it violates Eighth Amendment standards. General, like the majority, Attorney the substantial changes recognize
that section (a)(18) subdivision made in the also acknowl- law. They ante, its constitutional edge 266.) as written. infirmity at (Majority p. opn., However, the majority decide to rewrite the section onto the by engrafting 1978 initiative two of the 1977 law’s (1) an intent to torture requirements: degree 2First (§ 189) willful, deliberate, murder requires torture premeditated intent to inflict extreme and prolonged pain, (People premeditated but not a kill. intent to Steger (1976) 539, v. 161, 665, Cal.3d 1206]; Cal.Rptr. [128 546 P.2d 83 A.L.R.3d People v. Mattson (1971) 177, 185, 4 Cal.3d Cal.Rptr. 193].) Any 481 P.2d inten tional involving act high degree death, of probability of committed with a conscious dis life, regard for human (Id., 182-183; sufficient for a conviction theory. under this pp. at see also Thomas (1953) 1].) 474-475 pain Awareness of by the victim is not required. (People Wiley 168 [133 881].) 554 P.2d living act upon
the victim and infliction of “an extremely painful ante, victim.” at (Majority opn., p. under the
I what such question point legislative drafting—performed acting either left to the guise “statutory people, construction”—should be I through the initiative process through legislative representatives. their *41 fashion, individual also the question wisdom of in construing, piecemeal of judicial of the for the degree 1978 law without an provisions appreciation overhaul constitutional that has been to ensure the law passes required muster. far,
So
Ini-
Briggs
this court has
of the
construed three
provisions
to
the felony-
tiative
their
of these was
preserve
constitutionality. The first
190.2,
murder
subdivisions
special circumstance
of section
provisions
(a)(17)
in Carlos
(b),
and
which
v.
opinion
were the
of this court’s
subject
Court,
There,
court con-
Superior
supra,
Recently, People (1985) Brown Cal.Rptr. 40 Cal.3d 440], 709 P.2d of this court sections construed two other the majority 1978 law: (k) in section subdivision directs language to consider jury other which extenuates the “[a]ny gravity circumstance crime even it is not a excuse for the crime” and though legal directive in section 190.3 that the “shall a sentence death” impose ” “the if circumstances circumstances. aggravating outweigh mitigating As to k” held the “factor the Brown that that provision language, majority “ to other ‘any “aspect could construed consideration permit jury’s the defendant as proffers defendant’s character or record . . . that [the] relied on basis death.”’” The court for a sentence less than 813], in which Easley (1983) susceptible necessarily statutory language [was] “we determined 541.) (Brown, 40 Cal.3d at p. clarification.” held that “the majority “shall” “outweigh” language, As to the certainly not but balancing process, mental . . connotes a . word ‘weighing’ one which calls for a mere of factors on each side mechanical counting ‘scale,’ imaginary or the any arbitrary assignment ‘weights’ them. Each is free to value he juror whatever moral or assign sympathetic deems he is appropriate each and all of the various factors permitted (Id., construction, consider . . . .” at conclud- majority Such a p.
ed, was “reinforced in the 1978 law” by examination of general language (ibid.) (Id., 190.3.” section plain language “honor[ed] 545.)3 p.
This present exercise in what was done construction judicial goes beyond in Brown and Carlos. What more than the rectification here is far required of a error or Some— “drafting” a clarification of “ambiguous” language. not all—of
though version of elements eliminated from the 1977 revived, torture-murder been special circumstance statute have under simply *42 that it is principle our a construction duty statutes constitutional give “‘rather than another (Ma- in conflict with the Constitution.’” [which is] ante, 264, at jority opn., School Dist. p. San Francisco v. quoting Unified (1971) 937, 309, Johnson 3 669].) Cal.3d P.2d 948 479 Cal.Rptr. [92 Upholding a laudable statutes is constitutionality certainly goal of However, statutory construction.4 at some “construction” point, becomes of such judicial overreaching that it invades the province our proportions sister branch and us in the a improperly places position legislative body.
Since we are clearly under the Constitution—not to mention powerless far statutes, from in equipped—to the business of we engage rewriting must be careful to circumscribe the boundaries of that function.
Even the
majority
that the
constitutional
recognize
duty
give
meaning
to statutes arises
when it
only
can
be said that
statute is
fairly
susceptible
ante,
of two
Here,
constructions.
at
(Majority
there
opn.,
p.
is no
provision
3Another
of the 1978 law which this court has construed—albeit not to save its
constitutionality—is
(§
the kidnapping special circumstance statute.
subd. (a)(17)(ii).)
People
Bigelow
(1984)
731,
328,
v.
37 Cal.3d
Cal.Rptr.
755-756
691 P.2d
[209
994]
this court construed the word “and” in
permit
that statute to mean “or” so as to
proof of
occurring
murder
during
simple
aggravated
either
or
kidnapping
subject
an accused to
(But
penalty.
Bird,
the death
J.,
see cone. &
opn.
dis.
C.
37 Cal.3d
pp. 760-761.)
at
Noting that “the word
intended[,]”
‘and’ is often carelessly used when ‘or’ is
the majority
adopted
reasoning
advanced
Superior
(1981)
in
Court
122 Cal.App.3d
Talamantez
629,
800],
639
Cal.Rptr.
[176
to the effect that the two offenses were grouped together
“‘within one subsection because of
relationship.’”
(Bigelow,
their close
supra, 37 Cal.3d
755;
p.
People
at
see also
685,
v. Skinner
Cal.Rptr.
precisely
Carlos v.
way special an intent to inflict act upon torture and the infliction of an extremely painful victim, two of the of the law. Nor is the living major- requirements “construction” ity’s statutory language that the new justified by any finding is “ambiguous.” drafting doctrine from separation correcting us powers precludes voters,
errors on which their stamp or have wisely unwisely, put Instead, concerned, our is duty where clear approval. statutory language limited to such constitutional measuring language against principles. guiding We do not and cannot act to cure error every as a superlegislature (1983) 34 Dillon (Cf. the drafters of initiatives. Legislature People 390, 697].) 668 P.2d Cal.Rptr. MOSK, on torture-murder I concurin the views of the majority J. I from dissent
therefore in the affirmance on the join judgment guilt. reversal of the penalty. acts of violence
The other offenses admitted in evidence involved serious considered and were therefore relevant as factors to be aggravating (See v. Robertson dis. assessing penalty. my opn. 77].) The other crimes need *43 all, not be defined in instructions to After should not jury the jury. become law—i.e., involved in crimes— extraneous definitions legal prior but in the of violent conduct. error in the admission and Thus I find no fact consideration of other offenses. to the
Contrary not involve a Ramos majority this case does holding, Ramos (People 430]) Cal.3d 136 Cal.Rptr. error. Ramos was concerned with to consider the an instruction jury Governor’s commutation here. While power; no such instruction given the prosecutor’s of the com argument have been jury may suggestive mutation this power, error was admonition by cured an by appropriate court to the jury, the usual are by arguments instruction that counsels’ not evidence law. the court instructs on the only applicable I am not convinced that are as our sometimes jurors as naive opinions case, In a to stress the imply. capital sympa- defense attorney attempts thetic factors that merit a verdict of life than death. Conversely rather to stress the factors that prosecutor attempts aggravating justify forfeiting (33 the defendant’s life. As I wrote in Cal.3d at Robertson dissent my 64), “there is no reason to believe the were unable to p. jurors recognize when heard in the heat of courtroom battle.” attorney hyperbole I would affirm its judgment entirety.
BROUSSARD, with the Chief Justice that the torture-murder I agree J.— Code, circumstance of special (Pen. the 1978 death initiative penalty (a)(18)) subd. cannot be construed to reasonably incorporate § requirement that the defendant intended to inflict torture. The drafters the 1978 initiative re- removed the law deliberately of the 1977 provision an intent to quiring inflict torture. an draft a statute apparent attempt that would in as defendants as sweep many special fashioned possible, they circumstance which its terms intentional murder applies every which the victim suffers Its extreme of duration. physical pain, regardless language rendered encompasses most murders which the victim is not instantly unconscious the first shot or blow. Because the torture-murder special circumstance thus fails to out those mur- single special, aggravated ders for which the death can be it violates appropriately imposed, the Eighth (See Amendment to the United Carlos v. States Constitution. Court
Superior (1983) 35 Cal.3d 672 P.2d 862].) if, enactment, We reach too far into the to save this we read back law provisions were eliminated the drafters. I would deliberately therefore hold that the torture-murder circumstance of the 1978 law special unconstitutional, and would reverse the circumstances. finding special
In order to bring about a decision of this I concur in the majority appeal, discussion of the out in the dispositive issues set penalty phase plurality of Justice opinion I was flawed Reynoso. agree penalty judgment by instructional error: the failure to crimes must instruct that uncharged doubt; proved beyond reasonable the failure to direct the consider evidence; and weigh defendant’s character and mitigating background of an giving instruction which “shall” return a death implied jurors verdict if circumstances circumstances aggravating outweigh mitigating if they even do not believe death is I also agree appropriate penalty. *44 errors, combination,
that these were a new prejudicial require I take no trial. on the issues addressed in the opinion position plurality on guidance the retrial case. provide