*1 S004399, July Crim. 22311. No. 1988.] [No. PEOPLE,
THE Plaintiff and Respondent, HAMILTON, Appellant. BILLY RAY Defendant and *7 Counsel Defender, Jr., by the Bell, appointment Public under
Frank O. State Defender, Court, and State Public Spiegel, Deputy Musawwir Supreme for and Appellant. N. Hiken Louis White, General, Attorney Steve Chief Assistant Van John K. de Kamp, General, Wilkinson, McMurray, D. Ronald F. Edmund Attorney Herbert General, Attorneys for Plaintiff D. Deputy S. and Ward Prager Campbell, and Respondent. as Amici Curiae on behalf of Hamburger and Lon Scheidegger
Kent S. Respondent. Plaintiff and
Opinion Code, (Pen. (b)) subd.
MOSK, J. appeal an automatic This § (id., law penalty under the 1978 death imposed of death judgment from seq.). 190.1 et § murders of degree in three counts the first
Defendant was convicted Code, White, (Pen. Rocha, Bryon Schletewitz Douglas §§ Josephine (id., robbery Schletewitz in one count of the 189), attempted §§ Joe Rios deadly against weapon of assault with a two counts 664), count, three (id., (a)). each murder subd. As to Jack Abbott §
131
190.2,
felony murder-robbery (id.,
true:
circumstances
found
special
§
one
(a)( 17)(i)),
killing
subd.
murder
on the
of
of the two
multiple
predicated
190.2,
other victims
subd.
and
murder
on
(id.,
(a)(3)),
multiple
predicated
§
(ibid.).
of
other
killing
matter,
initial
the judgment
our
this
we affirmed
as to
opinion
guilt,
error
trial.
also
concluding
no reversible
had occurred at
We
set aside
circumstance
and
findings
judgment
penalty.
reversed the
special
v.
We reasoned that
of Carlos
Court
35 Cal.3d
Superior
(1983)
violation
131
862],
672 P.2d
and
v. Turner
37 Cal.3d
Cal.Rptr.
People
[197
302
P.2d
failed
669],
to instruct the
Cal.Rptr.
[208
felony-murder
that intent to kill was an element of the
and multiple-murder
special circumstances. We further reasoned that the
fell within the
errors
the general
of
rule of automatic
scope
reversal declared
Garcia
People
(1984)
After granting the General’s petition rehearing, for we have reconsidered, overruled, and Carlos and Turner. (People Anderson 1104, 1147, 43 Cal.3d 1149-1150 P.2d As 1306].) we shall now explain, as before we conclude that judgment must conclude, however, affirmed as to We guilt. now circum- special stances must be on the upheld: facts of this case the court was obligated kill, to instruct on intent to and its hence failure to do so was not error. Finally, conclude that judgment must be affirmed as to penalty.
I. Facts 29, 1980, On August defendant was released from Folsom While Prison. Ray there he had met Clarence Allen. In 1974 Allen had masterminded burglary of Fran’s Market in Fresno his “family” crime and had subse- quently ordered the “family” execution of a member who had murder, “snitched.” In 1977 Allen was tried and of burglary convicted offenses, Schletewitz, other among Ray and was to prison; sentenced one Market, the owners of Fran’s Bryon against son had testified Allen. 2, 1980, $100. On September Allen’s son Kenneth During wired defendant 5, 1980, the week preceding defendant and September one Connie Barbo had visited home of Kenneth Allen Kathy and his wife several A times. photograph defendant subsequently Ray found there. Clarence Allen records, had access to Folsom prison including photographs inmates. 4, 1980, time, On September before just the p.m. closing defendant and Barbo entered Fran’s Market several items. bought Joe Rios handled their day At 7:57 purchases. p.m. returned; next defendant and Barbo *9 No other custom- they entered. the front.door after
one of the clerks locked and Defendant closing store. employees and the ers were present, several items for Rios wrapped to the meat counter where Barbo went back aisles, eye on the because couple but an began kept to sweep them. Rios several them down watching go After they might shoplift. he suspected however, cart, they he decided were not in shopping and items a put aisles at the rear of the store. He back to the stock room to steal. went planning room, his he fellow employees— walked the stock saw As Rios into Schletewitz, White, Rocha—walking in be- and Bryon Josephine Douglas defendant, him, was a sawed-oif by holding Barbo and who hind followed lie on the He then to floor. employees Defendant ordered all shotgun. there the safe. White was open protested White into the freezer to directed and to open then identified himself offered safe there. Schletewitz no safe, a behind the freezer where the safe was led room and defendant other employees. Barbo held revolver on the located. Schletewitz lay, scuffling Rios could hear some between
From where he and get gun,” defendant “You better not say and defendant. He heard and said to from behind the freezer emerged then a Defendant bang. loud White, When White said he did not “Okay, boy, where is that safe?” big know, neck. At that Rios dashed to point defendant shot him the in. the stock- sitting Rocha was still on bathroom and tried lock himself bathroom, heard shot. The bath- inside the Rios another room floor. From aimed, and fired shotgun, and defendant loaded his room door then opened face, sustaining arm cover his Rios to raise his left managed at Rios. elbow. to the arm and injuries severe babe,” said, and then heard defendant go, “Let’s Rios bathroom, Rios saw from Emerging
Barbo to the front of store. go and Barbo tried to on the floor. Defendant lying the three other employees A raced the back door. voice the locked door as Rios out leave front fired, running. he kept to halt and a shot was but called out him shots, Abbott, Market, he Fran’s heard the When Jack who lived behind No. 6 with shotgun, containing pellets, which was loaded shells got store, where he ran into the ran Rios out. Abbott went toward store as left He he was shot leaving hip. White and Rocha. As Abbott saw doorway. He shot him in the standing and saw the man who shot turned he man and stumbled as car. The groaned the man ran toward his back as as defend- away. The man had the same physique car and drove got ant. in the hiding found Barbo arrived and p.m. police
Just before 8:30 White, Rocha, Schletew- and her revolver the toilet tank. bathroom *10 itz died from massive wounds. The Market shotgun front door of Fran’s was stained with blood later to match found defendant’s Around type. car, Comet, Kenneth Allen p.m. Mercury sold Barbo’s a a friend. Bloodstains matching defendant’s blood but not Allen’s were later type event, days found inside the Comet. Several after the Rios selected defend- ant’s from a He picture photographic lineup. was confident of his iden- tification because he had seen defendant and Barbo on two successive eve- and nings had them. recognized 10, 1980,
On defendant September was arrested Modesto a following at a robbery store. The lower left and liquor leg of his his left shoe had pants small in them. holes His left foot bore several circular injuries small and contained five foreign objects the size of 6 shotgun No. He had pellets. also a several-day-old laceration of skin between his right thumb and forefinger, injury a type caused frequently recoil of a sawed-off A Cadillac shotgun. registered to Kenneth Allen was near parked the liquor store; it bore defendant’s and fingerprints was stained with blood matching defendant’s type but not Allen’s. defendant’s Following arrest the police found in his possession a piece refer paper parties to as the “hit bore, list.” This document in defendant’s handwriting, names of Ken- Allen, neth and Kathy Bryon the names of Schletewitz and Ray, his father and the name and above, address of Fran’s Market. As Ray stated and Bryon Schletewitz had against testified Clarence Ray Allen at his 1977 trial. on a put defense of mistaken identity. The deputy sheriff who took Abbott’s initial statement testified that Abbott had been unable to identify or describe the man who shot at him a except as “dark-haired male.” Abbott said he had only seen a silhouette the doorway when he looked to see where the shots from. coming brother, Proctor,
Kathy Allen’s William testified he saw third man with Kenneth and defendant at the Allen house on 1980. September Proctor claimed the third man was tall and muscular like defendant. He also tes- tified defendant was with a walking slight day, limp he had a though twisted ankle. Proctor asserted that Barbo was not at the present Allen home that evening. defense,
Also testifying for the Shane Callaway first he claimed acciden- tally shot defendant the foot on He September 1980. stated defendant and Kenneth Allen had come to his house to collect debt that he owed Allen; duress, he paid under even; but said he would get defendant laughed; he then angrily out a pulled shotgun accidentally caused it to discharge into Callaway defendant’s foot. admitted he had been at the Allen house 5, 1980, several times since September Kathy had talked with Allen with the Fran’s Market connection charged was aware Kenneth had been denied, however, been in the He had shot knowing perpetrator killings. of the events at Fran’s Market with discussing any foot. He also denied testimony, rested. Callaway’s the defense Kathy. Following courtroom, outstanding he on two Callaway left the was arrested As thereafter, Callaway released on his the court misdemeanor warrants. Soon office where he him to the defender’s recognizance public own and directed *11 an attorney. conferred with defender, day, Callaway, later that his public
When the court reconvened counsel, in- The defender prosecutor present. public and the defense the warrants and the that he had discussed both misdemeanor formed the Callaway. prose- with The defender and charges public possible perjury testify had returned from Utah with- Callaway—who cutor that to agreed the warrants under “the be immune from arrest on subpoena—should out a the Uniform Act 1334.4”—the codification of section spirit [Penal Code] Criminal Without a State in to Secure the Attendance of Witnesses from immunity They Callaway given that Proceedings. also would agreed testimony exchange testify- for from his earlier perjury for prosecution the ing prosecution. for to Callaway preclude the defense counsel moved again,
Before took stand testify had on defend- testimony his to the effect that he to agreed expected anonymous received only family telephone members of his ant’s behalf after connection be- motion on the that no ground threats. Counsel based the denied the had been The court the threats and defendant established. tween motion, of mind only Callaway’s show state but admitted evidence to guilt. and not defendant’s consciousness He entirely testimony earlier for defense. Callaway then recanted his working had at a that 3 and he been September stated instead on Eureka, Utah, The nearest to airport until 7 8 a.m. mine copper have reached away. He said that he could not Eureka is 120 or 130 miles 4, 1980, day. that fact was not there Fresno on September friend, and he had Kathy good Allen a that He further testified was he the time a and a half trial. At with her month before spoken Kenneth, him a testify for she agreed gave in Fresno. When he to living say. He flushed of what he was containing supposed letter the substance Kathy day. after jail immediately toilet his arrest letter down met, defendant, he whom had never him with a description supplied investigator when he talked to defense thereafter was first present he decided not to investigator, After interview with the Allen home. anony- received family Utah. When members of his testify and went back to threats, however, defendant and testify he for agreed mous telephone returned to California.1 evidence of three other
At the introduced penalty phase, prosecution Kentucky jail, a a 1977 crimes committed defendant: from escape 10, 1980, robbery in Modesto. robbery, and the store September liquor Kentucky The One chaplain jail escape. former testified about he received a defendant that the set in one of evening note from television out of When he went three of the inmates investigate, cells was order. cell, defendant, in that tied him including key. Holding and took the up neck, knife him to his the inmates used the electronic doors and get past escape. *12 Jose, defendant a man in money robbed San some and a taking man, health,
watch. The elderly who was and in poor sulfered numerous arrested, facial robbery. cuts and bruises When during defendant told he hit the victim in police self-defense. Raymond Pifer was a clerk at a Modesto store on liquor September 1980, when defendant a knife and pulled money. money demanded Putting store, in a Pifer paper bag, As defendant complied. left the he brandished the knife at a doorway. customer who was blocking Pifer called the and defendant police was arrested within a minutes block from the store. Both Pifer and the customer identified defendant A nylon robber. and stocking that Pifer said the robber wore were cap found between the arrest, store and the site of liquor defendant’s and there was a paper bag money in containing defendant’s pocket. evidence presented his character and concerning background. sister, G., she, defendant, Phyllis
His testified that and their sister had essentially by been abandoned their parents at a tender The three age. children had been stay sent to with grandparents Kentucky one summer three, five, they when years and seven old. Their mother was supposed later, to retrieve them but never did. Years the mother a saying sent letter she did not want the children.
Phyllis stated that the children saw their occasionally father over the years, but he never lived with them or provided They for them. were raised and supported their with grandparents some assistance from an aunt and Callaway’s After recantation defense counsel moved the evidence to strike of threats on i.e., ground preclude, same as his earlier motion to that no connection between the threats again and defendant had been The established. denied the motion. year grandparents in his when junior left school high uncle. Defendant died; him in 1969. she last saw in Ken- had at her mother’s house Curry defendant lived
Nona testified brother, Nelson Curry’s 1971. Defendant and tucky between and They with Pettit, Curry’s at house. stayed helped and often were friends house, babysat daughter. her work around defendant job dropped a after helped get Pettit he had defendant testified a jobs four-year period, at several over worked They together out school. house, stayed parents’ at Pettit’s in 1969. Both of them frequently beginning house. Pettit described grandmother’s remodel Pettit’s and both worked to however, contact, They time. lost family during defendant as one of the this when Pettit married moved Florida. Salvation had defendant a
Michael Dunham stated he supervised Defendant was a warehouse Army center in San Jose in 1977. rehabilitation worker, a to collect donations. Defendant and also drove truck dock sober, When when drunk. drinking had a and became violent problem however, would human a good being, person he was “a kind person, other help people.” worker cooperative prison. defendant reports
Prison showed *13 II. Guilt Issues Jury-selection A. Issues to the jury that “death of the qualification” prior
Defendant contends the from a fair cross- right violated his to a drawn guilt of his trial phase vio that community. qualification” He also contends “death section of the must jury. points to an Both right lated his constitutional impartial 162, L.Ed.2d McCree 476 U.S. 173-183 rejected. (Lockhart [90 137, 147-154, 44 Cal.3d 732 Melton 1758]; People 106 S.Ct. 741].) 750 P.2d Cal.Rptr. B. “Hit The List” list” “hit that the admission the so-called
Defendant contends trial, in the course he to the list as seized was error. Prior moved suppress to motion, effectively the a The prosecution opposed of warrantless search. alia, with the lawfully conjunction was seized in inter list arguing, booking process. established. following Upon facts were hearing,
At the suppression the Modesto jail following at the Stanislaus booking defendant’s arrest and book, items, taken were robbery, including an address store several liquor inventoried, in an envelope and placed from the police, his pockets County authorities day, The next Stanislaus inventory affixed with an sheet. Detective Badiali of custody and envelope released defendant the Fresno Sheriff’s Department. custody of defendant
Detective Badiali testified that he received inventorying its jail signed envelope Stanislaus for without property contents, jail booking. and then to the for defendant Fresno transported therefor, Prior and in he booking envelope preparation opened narcotics, money, “see if any thing, there was contraband or sort of County before I it with Mr. Hamilton’s Fresno placed property Sheriff’s explained, He “I had for and this Department.” signed something really information or these hadn’t in- County Stanislaus properties ventoried the items that in the envelope.” On he opening envelope book, found I the address book. “As went through the address I found folded piece paper that fell out of the address book. I unfolded it and saw names on written the address book on page, He separate page.” recog- value, nized the names and their evidentiary and turned the list to the over prosecution.
The court ruled that the seizure of the “hit list” lawful and denied the motion to suppress.
Defendant claims that the ruling court’s was erroneous. As we shall explain, rejected. must be point se,
Warrantless searches are subject unreasonable per only few carefully exceptions. circumscribed v. Dalton (People (1979) Cal.3d 467], P.2d cited.) cases A “booking *14 search”—i.e., a search “at the place of during incarceration period LaFave, post-arrest detention” (2 Search and ed. Seizure (2d 1987) 5.3(a), § 477 p. (hereafter well LaFave))—is as one of recognized those exceptions. (Illinois 640, v. Lafayette 69-73, 462 (1983) 65, U.S. 643-648 L.Ed.2d [77 103 2605]; 64, S.Ct. 254, v. Ross People (1967) 67 Cal.2d 70 Cal.Rptr. [60 606], 429 P.2d revd. grounds on other nom. v. sub Ross (1968) California 750, 391 LaFave, U.S. 470 L.Ed.2d 88 1850]; S.Ct. see generally [20 supra, 5.3(a), pp. 477-487.) Although variously in our (see stated opinions § 196, People Maher 17 Cal.3d 200-201 Cal.Rptr. 550 P.2d [130 1044], of, for, and cases cited), purposes justifications and such a search are essentially two—to safeguard the arrestee’s and to belongings promote jail security. The permissible of a scope booking may search is broad: it arrestee’s everything pock- in the examination item-by-item an
“involve into into his wallet looking person, including ets on his or otherwise LaFave, (2 a search.” may it even extend to strip on the person; containers accord, § at Lafayette, supra, 5.3(a), p. omitted; supra, Illinois v. fn. 71].) at p. 646-647 L.Ed.2d pp. that Detective dispute shows without
In this case evidence “hit and found the in the envelope went the items through property Badiali detention. during postarrest of defendant’s jail period list” at the Fresno Hence, (See People the list was seized. properly the search was lawful and 1127].) 744 P.2d 44 Cal.3d 80-82 Miranda booking search justification was no for argues Defendant there We Badiali’s action. hence no for Detective jail justification the Fresno made initial an are Even the Stanislaus authorities though not persuaded. their own to have inventory, jailers properly the Fresno could conducted safeguarding of jail security and the ascertain—in the interests of both Only those those items in fact contained property—that envelope sheet.2 inventory items listed on the conclusion, error. of the “hit list” was not the admission
C. Motion to Recuse recuse
Defendant contends the court erred in a motion to denying his Prior Attorney’s District office from case. prosecuting entire Fresno following he made recusal on the Dale Blickenstaff trial motion facts. Attorney, Fresno was the assistant Stephen District Carlton attorney, second-in-command; Carlton district Blickenstaff’s represented Ray Allen at his trial and at that time had Blickenstaff as one Clarence motion, had law At the on the Carlton testified he partners. hearing his any discussions or decisions defendant’s case. participated concerning attorney, Normally, any as assistant district he would take decision part however, crimes, day to seek the death A or so after the charged penalty. Blickenstaff him there be a connection between appeared possible advised result, Ray he defendant and Clarence Allen. As a was excluded from case. Allen’s concerning discussions defendant’s He admitted that during justified argues generally also that even if Detective Badiali’s search could search, booking opening improper under rubric of a address because of the book was *15 special constituted a “closed container” and as such was Fourth Amend book entitled to Defendant, however, argument protection. suppression] ment hear “offered no such at [the ing may (Lorenzana appeal.” Superior not do v. so for first time on Court 9 626, 585, event, 33].) any Cal.Rptr. point Cal.3d 640 511 P.2d merit. without [108 Miranda, (See 81-82.) People supra, pp. v. 44 Cal.3d other members of his strategy he have with might 1977 trial discussed firm, Blickenstaff, any but could not recall discus- including specific former family or of his since sions. He had had no contact with Allen member 1977.
The to It that Carlton’s prior court denied motion recuse. observed Allen a if Allen were called representation might present problem of noted, however, testify extremely unlikely in defendant’s case. It that was it charged that Allen would be called because he was to be with the expected same offenses as defendant. it concluded “there is no actual Accordingly, conflict, there is no and there is no impropriety impropriety.” appearance the ruling, contending
Defendant attacks that Penal Code section 1424 (hereafter section enacted in 1424), the common law incorporates stated in v. principle People Superior Court Cal.3d 255 (Greer) (1977) 19 476, 561 Cal.Rptr. 1164], may P.2d to the effect a that recuse [137 attorney district prosecuting from a criminal when that official has charge an actual or potential conflict interest that him prejudice might against Attorney defendant. The General that replies requires section 1424 the conflict be actual rather merely than potential, that it be of such gravity as render it unlikely the defendant receive would a fair trial unless recusal is ordered. He concludes that under his interpretation the statute ruling proper.
Section 1424 provides relevant a part that motion to a recuse district attorney “shall granted not be it unless is shown the evidence that a conflict of interest exists such as would render it unlikely that the defendant would a receive fair trial.” The must showing be especially per suasive when the defendant seeks to recuse an prosecutorial entire officeand a simply particular prosecutor. (See, e.g., Love v. Superior Court (1980) 111 Cal.App.3d Cal.Rptr. under law]; common [168 577] [decided Chadwick Court Superior (1980) 106 Cal.App.3d Cal.Rptr. [same].) 864]
In Greer we held that “a
judge may
trial
exercise his power to
disqualify
attorney
district
from
in the
participating
prosecution of a criminal charge
when the judge
attorney
determines that
suffers from
a conflict
interest
affect,
which
him
might prejudice
against thereby
accused and
affect,
appear
ability
impartially
discretionary
perform
Greer,
functions of his office.” (
140 1424, ‘conflict,’ exists whenever circum- of section meaning within may that the DA’s office a reasonable possibility of a case evidence stances at (Id. in an manner.” discretionary function evenhanded exercise its 148.) p. a a was proper, on motion recuse determining ruling whether v. (Love Superior the abuse-of-discretion standard. court
reviewing applies Court, Court, v. 371; at Chadwick p. Superior supra, 111 supra, Cal.App.3d 77 671 v. Battin 115; People Cal.App.3d at Cal.App.3d p. 106 so “Because the decision 248].) 95 A.L.R.3d This is Cal.Rptr. [143 of the is within the discretion whether or not to disqualify [trial] Battin, Thus, burden at the 671.) just . v. at supra, p. . . .” (People Court, at (Love v. seeking Superior supra, recusal party trial level on the the ruling. of party complaining is on p. 372), appeal so the burden on Blickenstaff argues relationship between prior objective Ray Clarence Allen could have affected the and Carlton and and Blickens his case. He that Carlton’s consideration of asserts impartial have affected their decision pursue taff’s of Allen’s case could knowledge theory case. He further that such “witness retribution” in his asserts could have affected the manner which case personal knowledge Thus, con the death he prosecuted, including penalty. the decision to seek created at least the appear cludes Carlton’s former Allen representation ance of bias. improper is, course, a major
The prosecutorial impartiality protection 266- (Greer, 19 Cal. 3d at power. supra, pp. the court’s recusal purpose 1424, may Even it be recuse an entire 267.) under section appropriate that a attorney’s district office when there is substantial evidence deputy’s Conner, v. animosity may affect his colleagues. (People toward accused denied, however, may 34 Cal.3d at Recusal when p. 148.) supra, slight evidence of animus or bias is and does not amount to personal Court possibility (See Trujillo Superior reasonable of unfairness. Municipal 148 373 Court Cal.Rptr. 4]; People Cal.App.3d v. Bat- 639]; People (Henry) (1979) Cal.App.3d tin, 672.) supra, Cal.App.3d p. no theory prior
Defendant advances how Carlton’s representation animosity of Allen would have created such him that the toward personal have attorney’s district office would been unable to exercise prosecutorial in an evenhanded manner. Neither Carlton nor Blickenstaff discretion have about Allen Allen did anything could learned defendant from because The Carlton and Blickenstaff not know defendant 1977. possibility hostility incurred such to Allen in that Blickenstaff’s strong judgment
141 Such remote defendant was affected in 1980 seems insubstantial. about defendant would receive a unlikely “render it could not possibility Code, 1424.) fair trial.” (Pen. §
Defendant that a that Carlton unpersuasively argues report newspaper notwith was named on the “hit list” created the of appearance impropriety the fact it office knew it. standing attorney’s that was false and the district standard, Even under the Greer not newspaper report compel would Although may public recusal. the recusal be used to power protect system confidence in the criminal integrity impartiality justice of the 268-269; (Greer, 19 Cal.3d at see v. Rhodes 12 supra, People pp. 180, Cal.3d 185-186 524 363]), necessary P.2d it not [115 to take such a recusal step drastic of an entire office order prosecutor’s for an compensate erroneous Public confidence could newspaper report. be maintained with less extreme measures.3
Accordingly, conclude that defendant not has carried his burden of showing that its abused discretion in denying recusal motion. D. Prosecutorial Intimidation Witness of Defense contends substance that Callaway’s on be testimony half of the should have prosecution been stricken as the of product prosecu torial intimidation. The must point did rejected. Defendant not challenge Callaway’s testimony for the prosecution—including the threats made to Callaway’s family—on the ground intimidation, that it was the of product but solely on the ground that the prosecution had any failed establish connection between him and the threats. Thus the point is for preserved Code, (See review. Evid. (a).) subd. §
Citing
Webb Texas (1972)
necessary defeat support had in fact intimidated of evidence the prosecution the record is devoid *18 a determina- to allow For is insufficient evidence Callaway. example, there i.e., misconduct, in activ- “engaged committed prosecution tion whether duties unnecessary to ity wholly proper performance that was [its] ” into a prose- and ‘to transform defense of such character as [a witness]’ (In Cal.Rptr. re Martin 44 Cal.3d witness. cution of intimida- failure to raise issue 374].) a result of defendant’s P.2d As trial, showing facts had to opportunity present no prosecution tion at are Callaway. Accordingly, precluded we had not in fact intimidated that it acted holding prosecution improperly.4 from that Felony-murder Rule E. invalid, and hence that felony-murder that the rule is
Defendant contends
White,
Schletewitz,
Rocha,
may
which
the murder of
conviction for
rule,
is
be
The
without
point
been
on the
must
set aside.
predicated
have
held
rule on
we
felony-murder
grounds
merit: defendant attacks the
34 Cal.3d
462-476
Dillon
People
insufficient
390,
III. Circumstance Issues Felony-murder A. Circumstances Special Failure Intent Kill
1. to Instruct on felony-murder special-circumstance
Defendant contends must not instruct that intent to be vacated because the court did findings agree. kill an We not was element of that circumstance. do special Anderson, 1147, “The As we held in 43 Cal.3d at People supra, page felony-murder court must on intent to kill as an element of the instruct is find special circumstance when there evidence from which the could that the defendant was an aider and rather than the actual abetter [citation] Here, killed actually killer.” all the evidence showed that defendant either Rocha, White, Schletewitz, all; not involved the crimes at object Callaway’s that to extent failure to testi Defendant claims defense counsel’s mony ground prosecutorial point, on the a waiver of the such failure intimidation effected rejected. predi point assistance counsel. The be The claim amounted ineffective must Callaway. prosecution attempt cated on the in fact to intimidate But as assertion did explained, adequate in the support have that assertion is without record. Accordingly, abetter. that he was an aider and there was no evidence on did err in to instruct intent.5 failing court not Deliberation 2. on Premeditation and Failure Instruct felony-murder special-circumstance Defendant contends that did instruct that findings premedita must vacated because not do tion and deliberation elements of that circumstance. We special history beyond of the statute establish agree: language peradventure felony-murder and deliberation are not elements of the premeditation *19 the argues logic circumstance. Defendant that “the Carlos deci special Court, v. sion 35 Superior supra, pp. Cal.3d at compels [Carlos 140-141] established, only conclusion that not intent kill must be but premedita Anderson, 1104, tion and v. deliberation as well.” In 43 Cal.3d People supra, however, we found the on “logic” (Id. Carlos this to be point wanting. 1143-1144.) pp. Accordingly, reject we defendant’s argument.
B. Multiple-murder Special Circumstances
1. Failure to Instruct on Intent to Kill Defendant contends that the multiple-murder special-circumstance findings must be vacated because the court did not instruct that intent to kill was an element of that special Again circumstance. do agree. we not Anderson,
As 1150, we v. implied 43 People Cal.3d at supra, page the court must instruct on intent with regard the multiple-murder special circumstance when there is evidence jury from which the that could find defendant was an aider and abetter rather than the actual killer. As stated above, there was no evidence that defendant anwas aider and abetter. Accordingly, the court did err to instruct on failing intent.6 Court, application Defendant claims that the of Anderson Superior rather than v. Carlos supra, 35 principles Cal.3d is violative of the post pro embodied in ex due facto and When, here, cess clauses of the federal and state point rejected. Constitutions. The must be question statute, the criminal act at a governing done time at which the Penal Code 190.2, yet (a)(17)—not section Carlos—gave subdivision construed in sufficient that notice killer, to kill required intent was not may subjected for the actual such conduct to Ander son post without offense to ex process principles. facto and due v. (People Easter Cal.App.3d Cal.Rptr. 746].) 185-187 [242 Turner, application 6 Defendant claims that the People supra, Anderson rather than Cal. 3d principles is violative of the in the post process embodied ex facto and due clauses of the federal and state rejected point dealing Constitutions. For reason we a similar with felony-murder circumstance, special reject point (See ante.) we this as well. fn. Allegations Special-circumstance
2. “Multiple” Multiple-murder for the correctly prosecution it was error contends instead of one. As circumstances special six allege multiple-murder Anderson, 1150: “The plain 43 Cal.3d at supra, page People explained been in this proceeding defendant has 190.2(a)(3)—‘The of section words how that no matter murder’—suggest than one offense of convicted of more a they single multiple- constitute charges together, are tried many murder constitu supported That certain reading murder circumstance. special for double ‘. . . circumstances “alleging special two tional considerations: arbitrarily impose inflates risk will improperly murder requirement with constitutional death result also inconsistent penalty, jury’s objective and focus the sentencing guide procedure capital and the circumstances of offense consideration of particularized . charging . . [Accordingly,] appropriate individual offender. [Citations.]” circumstance special separate one allege multiple-murder should papers five of the It follows from the individual murder counts.’ [Citation.]” must be vacated. findings six multiple-murder special-circumstance *20 Penalty IV. Issues of As we to the issue going penalty. Defendant raises several contentions shall none is meritorious. explain,
A. Issues to “Other Crimes” Evidence Relating makes a number to the introduction relating Defendant of contentions robbery. He first claims that concerning liquor evidence the Modesto store constitutionally evidence of crimes not in conviction is inad- resulting other rejected at the of a trial. We penalty phase point, missible capital however, v. Balderas Cal.3d 204-205 People (1985) Cal.Rptr. 480], 711 P.2d by
Defendant next claims that the court erred
to instruct
failing
jurors
they
robbery
liquor
could consider the evidence
store
if
only
they
beyond
found that he had committed the crime
aggravation
v.
53-54
reasonable doubt. We
Robertson
Cal.3d
agree. (People
77, 655 P.2d
He then
the error was
279].)
argues that
preju
We
In
dicial.
cannot
view of the fact that defendant faced over
agree.
whelming
actively
direct
and indeed did not
contest the
guilt
evidence
issue,
v.
we
Miran
(Cf. People
conclude
error
nonprejudicial.
da,
Finally, defendant or not whether finding stating return a written jury gation require v. Gates robbery. store People it found him of the guilty liquor however, 1168, 1203, rejected point. Cal.3d Penal Code the Instruction Pursuant Relating B. Issues Section 190.3 it in- when particulars
Defendant contends the court erred several (hereafter Penal Code section 190.3 jurors, structed the in accordance with 190.3), they determining penalty. section on the factors should consider to delete by refusing “mitigating” Defendant first claims the court erred factors the evidence adduced at trial. Under unsupported People Miranda, 105, however, 44 Cal. 104 and the court’s 3d at supra, pages refusal was not error. it by instructing
Defendant next claims that the court erred did in accordance with factor circumstances of the crime of which (a) (the (the the defendant was in the factor present proceeding), (b) convicted use, use, activity or absence of criminal presence involving attempted *21 threat, of force or and factor or absence of violence) (c) (the prior presence felony convictions).
He argues statutory first that the court’s instruction as to sentenc In ing (b) factor was error. he maintains that section 190.3 must be support construed to limit the of that factor to crimes other than those of scope which the defendant was convicted in the On this capital proceeding. point Miranda, v. agree. we 44 Cal. 3d at He then (People supra, pp. 105-106.) maintains that the limit court’s instruction did not so scope thereby factor and of the same evidence “double-counting” permitted however, by the On at and hence jury. disagree (see 106) this id. point, p. the claim error. reject (b)
Defendant next that the court erred in factors and argues giving he maintains that in order to (c) prevent without qualification. Specifically, statutory by the risk of scheme established section double-counting, must the trier fact evidence of a 190.3 be understood to allow to consider
146 felony in a conviction resulting of violent criminal conduct single instance agree. not both. We cannot (b) (c) under either factor or factor but evidence under both factors may The trier of fact consider such properly i.e., propensity to determine the defendant’s independent purposes: for two v. (People lack of to deterrence. response for criminal violence and his Melton, the court should 764-765.) 44 Cal.3d at On supra, pp. request, their interrelation- (b) (c) explain on factors perhaps amplify made, under a as here no such the court is not request But when ship. v. Anderson duty (People an sua give amplification explanation sponte. 238, 633, 366].) 64 Cal.2d 414 P.2d (1966) Cal.Rptr. 639 [51 factor combined language (k), Defendant also claims may have to his argument, jurors prejudice with the misled prosecutor’s they agree. about the evidence consider in We might determining penalty. 190.3, the court that in deter- jurors Pursuant to section instructed they consider several circumstances and mining specified should penalty Any also other circumstance which extenuates the of the crime “(k) gravity even it is not a excuse for the crime.” though legal 309,
In
34
858
P.2d
Easley (1983)
Cal.3d
671
People
Cal.Rptr.
[196
813], we concluded that the language
(k) might
jurors
of factor
mislead
consider,
they
about the evidence
in violation of the federal Constitu-
might
tion as construed in Lockett v. Ohio
438 U.S.
604
(1978)
L.Ed.2d
[57
973, 989-990,
2954],
Eddings
98 S.Ct.
v. Oklahoma
455
U.S.
1, 8,
102
869],
L.Ed.2d
S.Ct.
in which the United States
[71
. .
may
Court held that the trier of fact
“.
not be
from
Supreme
precluded
considering,
mitigating factor, any
as a
of a
aspect
defendant’s character or
record . . . that the defendant
profilers as basis for a sentence less than
Lockett,
(Eddings,
death.’”
at
supra,
p.
8],
L.Ed.2d at p.
quoting
[71
L.Ed.2d at
supra,
C.
p.
p.
(plur. opn.
Burger,
J.).)
[57
990]
Brown
Cal.3d 512
People
709 P.2d
440], reversed on other
sub nomine
v. Brown
grounds
(1987) 479
California
U.S. 538
L.Ed.2d
147 Brown, 479 U.S. at p. (California supra, has occurred. dimension [93 O’Connor, see, 943, J.); e.g., p. (conc. opn. at 107 S.Ct. at p. L.Ed.2d 842] 749 P.2d Cal.Rptr. 44 Cal.3d Hendricks People Cal.3d 739 P.2d v. Ghent 836]; People 1250].) above, at bar. As stated the court instructed
We this test to the case apply language (k). to of factor jury pursuant misleading the potentially cure, turn, will to nothing but prosecutor’s argument—as appear—did exacerbated, he actually the instruction’s to mislead: told potential in evidence irrelevant. mitigating simply essence defendant’s factors,
After discussing other addressed fac- penalty prosecutor eleven, tor “Number other (k): any circumstances which extenuates [s/c] of the gravity though crime even it is not a excuse for the legal crime. Is any justification there or excuse offered on behalf of defendant for why Obviously this crime occurred? there is not. The evidence presented by the this to morning goes any guidelines. not these you eleven What defendant heard this morning was evidence from who knew defendant well people years ago. twelve None of people these knew the defendant or were with the at defendant or about the these time crimes were occurring.” (Italics add- ed.)
The “In prosecutor continued: listening those the Court guidelines has you, read there are no circumstances What was mitigation. presented to you morning this does any apply guidelines the Court is going to you read to .... you’re all your going basing decision on. [T]hat’s what your That’s makes easy decision this case that there are no circumstances in mitigation.” (Italics added.) stated,
The prosecutor then defense . . . arguments . . . “[If] counsel[’s] don’t fit into of those guidelines, they then are not basis for consider- your ation in making decision this Immediately case.” thereafter the reiterated, said prosecutor his final to the jury words “There are no circumstances mitigation.” word,
In a as the General Attorney himself conceded oral argument, “The did prosecutor argue that there mitigating was no evidence.”
Thus, far from the notion dispelling that the jury’s sentencing discretion responsibility confined the potentially misleading language of (k), factor prosecutor on capitalized language exacerbated its *23 for potential in misleading jury this respect. crucial been misled may have jurors are of the opinion
Accordingly, con- and hence in they fixing penalty, consider might the evidence about dimension occurred. error of federal constitutional clude that harm threatened cured the Attorney argues The General During deliber- “mitigating.” of the term by a definition by (k) giving factor three ations, reread the instructions penalty the court to asked jury time, read all of “Please they following request: added the times. The third circumstances. mitigating aggravating again explaining the instructions layman’s in terms?” definitions of these words us additional you give Can Dic- from Black’s Law following definitions gave the court response, attending commission Any circumstance tionary: “Aggravation. injurious to its conse- enormity or or adds guilt increases its crime which of the the essential constituents beyond above and but which is quences, such as do Circumstances ‘mitigating.’ I will next define []j] crime itself. []f] which, but of the offense in question, or excuse justification not constitute extenuating reducing mercy, may be considered in fairness and “Now, you jury: then cautioned the The court degree culpability.” of moral any way two were not intended to should understand that those definitions gave you, they response that I original simply alter the instructions clarify by is meant those words that were to further what your question my (Italics added.) instructions.” used jury’s brief answer to the query
We are not that the court’s persuaded jury was to the time and (k) presented cured the harm threatened. Factor extensively by the prosecutor it was again: quoted emphasized instructions, in the and reread by penalty delivered the court argument, “mitigating,” The court’s definition of during three times deliberations. contrast, reasonably but More could not given important, once. of factor the court (k): have taken the court’s answer to expand scope that its definitions “were not jurors supplemental warned expressly .” you that I . . . any way original gave intended to in alter the instructions harmless. At the thresh- Attorney argues The General that the error was determine the standard of review for As we proper prejudice. old we must As the error here is of federal constitutional dimension. explained, have such, test of subject beyond-a-reasonable-doubt it is to review under the 705, 710-711, 18, 386 U.S. L.Ed.2d Chapman California rule, 1065], general 24 A.L.R.3d if it falls within the of the scope S.Ct. se, v. Texas if it falls an per exception. (Satterwhite or is reversible within 1792, 1797-1798].) 486 U.S. L.Ed.2d 108 S.Ct. 481 U.S. L.Ed.2d 107 S.Ct. Dugger (1987) In Hitchcock 393 [95 the United Court that the kind of error 1821], suggested States Supreme (See under consideration here is to review under the test. subject Chapman *24 353, at p. judge L.Ed.2d at S.Ct. p. id. at 398-399 pp. 1824] [the consider, refused not to himself advisory sentencing jury an instructed consider, Ac- defendant].) evidence mitigating proffered certain to until the directs us to do otherwise. we shall that test cordingly, apply Attorney agree Even under we are to with Chapman, compelled summary claim that the error was As our nonprejudicial. General’s reveals, the evidence at the of the trial guilt penalty phases proceedings was mini- overwhelming mitigation was and the evidence aggravation circumstances, are the error was mal. In these of the opinion beyond a reasonable doubt. harmless
C. Brown Error in contends CALJIC No. 8.84.2 pre-Brown mandatory struction the section 190.3 incorporating sentencing language case, (hereafter may former CALJIC No. which 8.84.2), given was this have misled the jurors to his their prejudice sentencing to scope Brown, responsibility and discretion. (People Cal.3d at 538- supra, pp. 544.)
Although Brown we held that the was not uncon sentencing provision stitutional in (40 itself Cal. 3d at pp. 538-544), we nevertheless recognized that when delivered in an statutory instruction the unadorned language might jurors mislead the as to the of their discretion and scope responsibili (id. ty to the defendant’s prejudice 17). fin. With p. respect to cases— such as the which the present—in jury had been instructed in the statutory language, we announced that we would examine each such on its appeal merits to determine whether the jury may have been misled. (Ibid.)
Our concerns in Brown essentially The two. first was that the unam- plified language of section might 190.3 mislead the jury as to the nature of context, the weighing “In . . . process. ‘weighing’ word is a meta- [its] for a which phor process by nature is incapable of The precise description. word a mental connotes balancing process, certainly but not one which calls for a mere mechanical counting of factors on each side of the imaginary ‘scale,’or the arbitrary assignment of‘weights’ of them. Each juror is free to assign whatever moral value he sympathetic deems appropriate each and all of the various he factors . . . .” permitted (40 consider Cal.3d at p. 541.)
Our second concern statutory language mislead the might jury as substance of the ultimate it determination was called on to Contrary make. to constitutional principles, that language “could be under *25 circum aggravating whether ‘the juror a to determine require (i) to
stood the juror’s to regard the circumstances’ without outweigh mitigating stances sentence, to a (ii) impose and then view as to the appropriate personal juror if the does if even aggravation outweighs mitigation of death sentence under all the cir the sentence appropriate believe death is not personally 1222, 1277 . Allen 42 Cal.3d . . cumstances (People Grodin, by Brown we J.).) (lead opn. P.2d 115] to interpreted should rather be statutory language require that the declared “ on the of make ‘. . . individualized determination basis the an that ” the crime’ (40 the and the circumstances of character of individual the thereby penalty and decide “which is deleted), 3d at italics p. Cal. (id. p. 541). in the at particular case” appropriate After record of the reviewing penalty We turn now to the case at bar. the have entirety, may conclude the been jurors in its we cannot that phase We 8.84.2. believe by misled to defendant’s former CALJIC No. prejudice do, and they were informed as to what were how they adequately that in the determination they proceed, penalty. of argument the argues prosecutor’s closing in substance that of CALJIC No. 8.84.2 misleading language made the former potentially We in the this case. are not misleading persuaded. context of The theme of the which time and prosecutor’s argument, repeated was in and aggravation overwhelming evidence was again, mitigation evidence in was nonexistent—and hence that the evidence called theme, course, of for the of death. Such a does not offend the penalty Brown. principles
We that at the of his recognize beginning argument para- prosecutor mandatory sentencing language: going “His Honor is in- phrased you that after heard all the evidence having struct and those instructions if determine that the you aggravating outweigh circumstances mitigating circumstances, If, you then on impose shall sentence of death. the other hand, you determine that the mitigating outweigh aggra- circumstances circumstances, you then shall life vating impose the sentence of without recognize We also that the end of his possibility parole.” argu- toward returned to you ment he “The Court point: will instruct after circumstances, guidelines, heard these if having aggrava- the factors outweigh, again you tion and are not a looking anything beyond reason- doubt, you. able that’s different You standard. have a scale front One aggravation is for one is for If mitigation. the scale towards tips mitiga- tion, you then are by bound of life impose law sentence without of parole. But if on the other hand at all possibility tips that scale towards mitigation, the circumstances aggravation outweighing factors of death in case.” then bound the sentence this you impose are law to Nevertheless, language made the do not believe these comments This is of former CALJIC No. 8.84.2 in the context this case. misleading so as whole these remarks argument because when considered short, isolated, relatively hence are swallowed appear unemphatic *26 conclu- in the theme that the evidence called for the of death. In up penalty sion, record on this we find no Brown error. ’
D. Determining Penalty “Burden in of Proof obligation Defendant contends that the was under constitutional jurors only to instruct the that if they might they return a verdict of death beyond a in persuaded reasonable doubt that the evidence aggravation outweighed mitigation evidence and that death was the appropriate however, rejected We penalty. point, Rodriguez, supra, People Cal.3d at pages 777-779.
E. “Multiple” Multiple-murder Special Circumstances
Defendant it contends that was prejudicial error for the court to direct jury to consider six multiple-murder special-circumstance ante, instead of findings one. We that the agree court erred. III. B. (See pt. however, 2.) We agree, cannot error Although reversal. we requires presume jurors considered the invalid special-circumstance findings facts, their independent they underlying cannot conclude that could reasonably any have given them significant independent weight.
F. Issues Relating to Guilt Phase Instructions 1. CALJIC No. 1.00
Defendant contends substance that by the court erred failing to jurors advise the that in fixing they should not be guided by last penalty 1.00, CALJIC paragraph of No. which was at the given guilt That phase. portion the instruction as follows. sentiment,
“You swayed by must not be mere conjecture, sympathy, passion, prejudice, public opinion public Both the and the feeling. People defendant have a right you expect will conscientiously consider and weigh case, the evidence and the law of the apply you and that reach will just verdict regardless of what of such consequences may verdict be.” have jurors could in substance that claims
At the threshold defendant
For
phase.
purposes
penalty
instruction over
carried
guilt phase
this
agree.
we shall
discussion
him to
subjected
prejudice.
the instruction
then claims that
with
injunction interferes
“no-sympathy”
its
he maintains that
Specifically,
mitigat
relevant
duty
consider
of its constitutional
jury’s
exercise
than
for a sentence less
a basis
evidence offered
the defendant
ing
death,
background
or to
evidence relates to
offense
whether such
in
the “regardless-of-consequences”
He further maintains that
character.
with
responsibility
the instruction undermines the sense
junction of
its determi
making
proceed
which the Constitution requires
nation of penalty.
Brown,
L.Ed.2d
107 S.Ct.
837], Supreme expressly the United States in and of No. 1.00 not erroneous injunction of CALJIC “no-sympathy” 940, 839-840].) 542-543 L.Ed.2d at 107 S.Ct. at (Id. p. pp. itself. at pp. [93 44 375 749 Similarly, Cal.Rptr. in v. Howard Cal.3d People to the “regardless-of- much with 279], impliedly respect P.2d we held as at (Id. 442-443.) same consequences” injunction pp. of the instruction. Brown, 536-537, Nevertheless, supra, in v. 40 Cal.3d People decisions, language we that in certain cases the subsequent recognized have by No. 1.00 indeed be might of the last of CALJIC understood paragraph and, understood, their fatally fears if so taint jurors might defendant entirety, record in we taint verdict. But reviewed the its find no such having First, case the here. there is no reason to believe that in this “regardless-of- sense of consequences” injunction jurors’ undermined responsibility. Indeed, expressly claim of Brown error we conclud- rejecting defendant’s do, they ed that the informed as to what were to jurors adequately ante, they (See of IV. penalty. pt. were to the determination proceed, how Second, if C.) “no-sympathy” injunction—even it did in fact lead background to consider defendant’s and character evidence— jurors not could been As we defendant’s prejudicial. resolving not have concluded error, (k)” jurors of “factor of the on this Easley misleading point claim ante, IV. beyond (See B.) must deemed harmless a reasonable doubt. pt. we hold that the last No. 1.00 did Accordingly, paragraph CALJIC subject defendant to prejudice.7 do, Recognizing, might paragraph as we in certain cases the of CALJIC No. 1.00 last Brown, jurors People prejudice, mislead to the defendant’s we adhere our statement supra, page portion at No. never be Cal.3d footnote 7: “this of CALJIC 1.00 should given capital penalty in a trial.” 2. CALJIC No. 2.20 by failing to in-
Defendant contends in substance that court erred (“Credi- No. 2.20 jurors, struct the sua in accordance with CALJIC sponte, bility Witness”), guilt phase. Assuming as it had instructed them at the by for argument’s sake that the court did indeed err reinstruct the failing jurors on this or at least advise them that the instruction delivered at point deliberations, the guilt phase was to their we be- applicable penalty phase lieve that the court did not defendant to reviewed subject prejudice. Having are penalty entirety, record in its we of the that in phase opinion absence of claimed error the outcome have been the same. would
3. CALJIC Nos. 2.60 2.61 contends in substance that the failing court erred to in jurors, struct the sua in accordance with CALJIC No. 2.60 sponte, (“De fendant Not May Inference of Guilt Be Testifying—No Drawn”) and CAL JIC (“Defendant No. 2.61 May Rely on State as it Evidence”), had instructed them at the guilt phase. People Preston 9 Cal. 3d however, 300], 508 P.2d clearly, albeit impliedly, rejected the with point regard substantially to the similar predecessors of (Id. these instructions. p. 316.) Defendant argues that we should limit the i.e., Preston to its factual holding setting, the trial of guilt innocence. He *28 fails, however, any to provide authority reason or that would us to compel do either a so general matter or on the facts of this case.
G. The Court’s a Question by to Asked the Response Jury
Defendant contends that a a response given by the court ques to by jury tion asked the during deliberations amounts to error. To prejudicial the properly address we must the point, place response under challenge its context.
Following the prosecutor’s closing defense argument, counsel opened his with following the gentlemen, statement: “Ladies and ... I would point time, out at you you to this that if did at point absolutely this Mr. nothing Hamilton the of spends rest his life That’s law.” prison. Reiterating statement, that counsel closed as I beginning, follows. said “[A]s now, you if absolutely do nothing Billy goes Hamilton to for rest prison of life . . his until he dies. . He will be within those for the rest of walls his life. I That’s what am to I am asking you you do. to in effect asking do Billy Ray and let Hamilton nothing stay behind the of that walls for prison the rest of life. I nothing think can done with ahead going Attorney request you the District and asking to the lever that pull I want an and don’t outrage would be because that too pellet releases you, ladies and gentlemen.” an Thank outrage. to commit you deliberations, day of the first at the end being excused jury As foreman, the jury the court and ensued between following colloquy McCauley. David then, this time jury . I to excuse the at going . . Well am
“The Court: jury is—yes, . . . sir? The you sharp. all return ten o’clock and ask McCauley: you as whether to question Some of us had asked the “Mr. a if not to reach we were say anything happen about what would could decision. Well, to have you, since want I let me this to suggest
“The Court: it, why I don’t attorneys before answer your to the chance show inquiry want, in mind as you a note that have you if write out you, morning, in the to be able going I don’t know if I am jury is and then asking to what not, you certainly have a to ask me right but your question answer you if I can. my I best to jury help and will do bothering that’s question McCauley: Okay. “Mr. until ten o’clock tomorrow jury The is excused right.
“The Court: All .. morning. deliberations, a note with the jury sent day On the second Calif, you the State require “What the law of
following would question: trial?” on the of this jury penalty phase if the is undecided (the court) do this, you you I give “The answer that can The court best responded: if the is unable consequences with the yourself concern shouldn’t is a matter which of the case. That phase on the penalty reach verdict *29 deliberating You should continue your consideration. enter into shouldn’t you in I will be to glad help it be you feel long productive for as way your I can deliberations.” that defense attor- note: “The sent the court another day, jury that Later go prison will Billy Ray do Hamilton ney nothing ... ‘if we stated that itself to that ques- true?” the court directed statement As for life.’ Is that defendant tion, response in which colloquy, following there ensued the challenges now is contained. ask, you did first let me your question but I will answer Court:] “[The that McCauley, interpret Mr. jury, on the that or did someone
interpret a verdict— agree upon do that if do not nothing mean if we McCauley: “Mr. Yes.
“The Court: Well— McCauley:
“Mr. That’s what we— “The you Court: I think is that what problem misinterpreted [de- argument entirely fense said meant. And his was proper counsel] jury what he was that if the did the death in their argued impose penalty not alternative, verdict but instead the other he be selected would still in a state for the life. He did not nor imprisoned prison argue rest it automatically would be true that he would togo prison jury for if life make, agree did verdict. You see the that I Mr. upon distinction McCauley? McCauley:
“Mr. Yes. “The Court: All right. jury Does that answer the had? question McCauley: Yes, “Mr. it One item. We does. additional to reach expect a decision within twenty fifteen or minutes. Very that,
“The you Court: well. I am glad alerted alerted us to that. So jury may now retire resume their (Italics added.) deliberations.” thereafter, Shortly jury with returned a verdict of death.
Defendant claims that the italicized portion court’s to the response jury’s question objectionable. argues he first support state- ment invited the jurors to consider matters to their task of determin- foreign ing whether death was the appropriate penalty this case.
As defendant acknowledges, himself the success of his argument depends on how a juror reasonable would have the court’s We interpreted response. believe juror that such a would have understood statement as we do— i.e., it is not the case that if the jury irreconcilably divided defendant automatically would sentenced life without imprisonment possibility fashion, in this parole. Interpreted the statement is of course correct. 190.4, Penal Code section subdivision (b), in relevant provides part: “If trier is a and has been unable to reach unanimous verdict as to *30 offact be, what the shall the penalty court shall dismiss the and shall a jury order newjury impaneled try to the as what issue to the shall be. If such penalty jury new is unable to reach a unanimous verdict as to what the shall penalty be, the in its discretion shall either a jury order new impose or life without the a term of in for prison confinement state of
punishment that a reasonable added.) We also believe of (Italics possibility parole.” the statement—certainly not in the nothing else have found juror would he has defendant claims irrelevant matters that on speculate invitation discovered. 488 F.2d 1974) Cir. (5th United States McCracken
In reliance on for the court that it was improper in substance argues defendant next of the consequences on jury’s question even a correct answer to give McCracken, however, In that case inapposite. is a verdict. failure to reach jurors, inform for trial judge it was error only the court held by guilty a verdict of reason of charge, consequences of the general that it was error to imply It did not state or insanity. 424-425.) at pp. of {Id. event, the law In by jurors. raised on matter question answer v. Ramos (1984) contrary (Cf. People defendant’s position. this state 136, 159, 689 P.2d [question fn. 12 37 Cal.3d 430] and life without commutability imprisonment of death on of sentences possibility parole].) conclusion, response was not that the court’s opinion we are defendant’s reject point.8 and hence
objectionable, Prejudice H. Cumulative that, errors phase together, penalty contends considered
Defendant stake, life is at Even when his agree. reversal. We do not this case require ” “ (Schneble fair not a one.’ perfect is entitled to a trial but defendant ‘[a] 340, 345, 1056].) S.Ct. L.Ed.2d 405 U.S. (1972) Florida did indeed that defendant the record are convinced From our review of of penalty. a fair trial on the issue receive Death Verdict Ruling I. on Application Modification of for in ruling error prejudicial that the court committed Defendant contends to Penal verdict of death pursuant for modification of the on his application 190.4, that the court he (e). argues subdivision Specifically, Code section to dimin- going evidence mitigating the absence of considered improperly in aggravation, under section 190.3 to be evidence capacity ished he had present- and character evidence to consider background refused support immaterial. To belief that such evidence was ed the erroneous by only min response preceded the verdict argues in substance that court’s response we have concluded must deemed its cause. But because utes hence immaterial for objectionable, claimed connection is we believe that causal was not determining prejudice. error purpose *31 at the verdict-mod- defendant refers us to the court’s comments point, hearing9 proceeding.10 ification and minute order relevant to that sake, we erred argument’s agree For shall with defendant that however, agree, as he claims it did. We cannot that the claimed error was in view of the evidence in and the prejudicial: overwhelming aggravation mitigation, any minimal evidence in the claimed error was harmless under standard.
J. Constitutionality
the 1978 Death
Law
Penalty
the 1978 death
is
on a
contends
law unconstitutional
penalty
variety of
ity of death. Because review of sentence 39, 1, 37, 465 U.S. fn. (Pulley (1984) v. Harris not review does such require 29, 33, 35-43, fails to set 871]) 104 S.Ct. and defendant L.Ed.2d 42-54 [79 request. we decline his authority or reasoning support, forth compelling Finding L. Enmund in view the theories
Finally, presented are of opinion introduced, a imply finding verdicts jury’s guilt phase the evidence and (1982) v. Florida U.S. (Enmund the actual killer that defendant was 1140, 1145-1154, re 3368]). Having 102 S.Ct. 788-801 L.Ed.2d [73 is finding amply we conclude that this entirety, the record in its viewed Accordingly, we hold it as our own. adopt the evidence and supported on defendant does not violate of the of death penalty that the imposition 376, 386 (1986) 474 U.S. (Cabana v. Bullock Amendment. Eighth 704, 716, 689].) 106 S.Ct. L.Ed.2d affirmed. judgment
The Kaufman, J., J., J., Lucas, J., J., Panelli, Arguelles, Eagleson, C. concurred. in the
BROUSSARD, J., majority’s I concur Concurring Dissenting. and, Anderson guilt compulsion People affirmance of under 1306], in the finding special 742 P.2d Cal.3d 1104 Cal.Rptr. the death imposition to the penalty. circumstances. I dissent errone jury, told the prosecutor of the trial penalty At conclusion char mitigating of the defendant’s they could not consider ously, that statutory it not relate to the evidence because did background acter raises argument legitimate factors. Because this mitigating aggravating to consid obligation its constitutional question performed whether verdict, hold that majority evidence at its arriving er the mitigating judge The trial (Ante, 146.) p. error has occurred.1 federal constitutional when, modify error on motion ruling the prosecutor’s repeated verdict, of his unhappy upbringing that defendant’s evidence he concluded (Ante, 156-157.) evidence. mitigating p. (See Easley People v. 34 Cal.3d California law. 1 Thisis substantial error under also 813].) 671 P.2d 878-880 [196 The cited errors form of error. serious represent particularly case, trials, only is to introduce present as most defendant’s penalty hope *33 may evidence which the or to understand the circumstances jury judge lead character, that to with or to sympathize personal struggle, molded his find him the redeeming jury in some conduct or If hears no such quality. or, it, evidence, evidence the of the hearing is told not to consider that result trial Such a trial whether death penalty is inevitable. does not determine is the but functions as a on road execu- appropriate penalty, only ritual the to tion. author,
The majority opinion recognizes the of the errors. Its seriousness in v. Deere People Cal.3d 710 P.2d 925], wrote the sentencer in a of all deprived case is or capital “[w]hen a substantial of the available in ‘the part mitigation, evidence for potential Indeed, prejudice too obvious to require proof.’ of sub- ‘short [Citation.] own, a verdict of stituting way its there is no for a court reviewing to determine unpresented what effect mitigating evidence have had on might the sentencer’s decision.’ We have no doubt that of judgment [Citation.] death imposed in such circumstances a miscarriage justice. constitutes Const., VI, (Cal. art. 13): only did defendant not have a fair penalty § trial—in effect he no had trial at all.” penalty
Much the can same be said of the present Surely case. we would not want to make much distinction between jury a case in which the heard no evidence, mitigating and one in they which disregard told to all such Deere, only evidence. The difference between this case and supra, 41 Cal.3d 353, is that in Deere jury could not have considered mitigating evidence they it; because did not it hear here is possible, although unlikely, evidence, jury did consider that contrary to the prosecutor’s admo- distinction, words, nition. The in other is between a case which the defendant deprived a fair trial and one in penalty which the defend- ant wasprobably of that deprived right—but both cases should be reversed for a new trial. penalty however, majority,
The
conclude that these serious errors are not revers
beyond-a-reasonable-doubt
ible under the
test of Chapman
California
(1967)
The one we should thing a fair penalty defendant of both which probably deprived substantial error modify. on the motion to and a considered ruling trial 22, 1988. rehearing September for a was denied Appellant’s petition