People v. Lang

Dec. S004655.Crim. No. 24257. [No. 1989.] PEOPLE,

THE Plaintiff Respondent, LANG, JR.,

KENNETH BURTON Defendant Appellant.

Counsel Court, and Michele Supreme L. under appointment

Richard Phillips, and Vague Appellant. for Defendant General, B. and Richard Steve White Attorney K. Van de Kamp,

John Jr., General, T. Fogel, Edward Attorneys Chief Assistant Iglehart, Willhite, Jr., General, Turchin, Marc E. Thomas L. Attorney Assistant General, Glassman, Plaintiff Attorneys David F. Deputy Respondent.

Opinion

KAUFMAN, J. is from under the 1978 judgment This death appeal Code, statutory all refer- death 190.1 et further penalty (Pen. seq.; law § Bur- this Kenneth indicated). ences are to code unless otherwise Defendant Jr., by jury (§ 187) the first murder Lang, degree ton was convicted found circum- robbery (§211) special of Thurman Anderson. The as a robbery that the in the of a perpetration stance murder was committed 190.2, firearm in the (§ subd. and found that defendant used a (a)(17)(i)) 1203.06, also (§§ 12022.5). of each offense Defendant was commission a firearm a convicted felon possession convicted concealable (§ 12021). conclude conviction of a firearm

We that the for concealable possession judgment a convicted felon must be set aside but that otherwise the entirety. should be affirmed in its Proceedings

Facts 18, 1983, Thurman was shot and killed on August approxi- Anderson Padres mately one mile from the Barrel in the Los Springs campground he he be hunting National Forest in an area where had told his wife would officers, testimony deer. In statements to law enforcement his pretrial trial, had admitted he had killed Anderson but claimed he defendant acted self-defense.

The Prosecution’s Case Portland, Oregon, acquainted

Daniel Crothers became with defendant 1983. On six occasions Crothers observed during summer of five or in a handgun pants. defendant coat stuffed down carrying pocket defendant, “Shilo,” he had the why When Crothers whom he knew as asked said, “I’ll waste pointed weapon defendant at Crothers gun, fucker me.” mother that screws with a construction they

Steve Schroff met defendant when both worked on of 1983 early in Atascadero the summer of 1982. project during August Schroff and he was to California telephoned coming announced 15, 1983. De- August in Atascadero on Schroff saw defendant a visit. under the and Schroff was and a radio carrying knapsack fendant day, left the next Defendant hitchhiking. been defendant had impression a .32- Schroff he had Defendant told south.” “down going saying protection. revolver for caliber in Camarillo left his home Thurman Anderson Thursday, August

On an driving Anderson was hunting. 12:45 deer p.m. go at approximately 21. by August return wife he would home. He told his motor undamaged and to hunt across at Barrel camp Springs knew he planned She had They or ridge. on a mountain rolling area campground stream from preparing map wife had assisted in June and Anderson’s visited the area to his According 101 to the campground. from Highway the route showing wife, hitchhikers. picking up not in the habit Anderson was motor home was Anderson’s August

At 8:45 p.m. approximately taillights Patrol because the Highway an officer of the California stopped De- 101 in Atascadero. Highway occurred on working. stop were not vehicle, fendant, his name gave and sole occupant the driver no identification and Defendant said that he had Kenneth Burton Stevens. at Defendant did not seem to his belonged stepfather. that the motor home all evasive or nervous. home, at Steve Schroff’s house the motor defendant arrived driving

Still next Defendant told Schroff day. approximately p.m. in Atascadero had hired defendant as a home to a hunter who belonged the motor have a just good he out and “go party; chauffeur. Defendant said wanted Davis, defendant and Terry Schroff’s girlfriend, time.” Accompanied get for defendant to arranged to a truck where Schroff" stop Schroff drove $13 $87 card. Defendant with Anderson’s credit worth of and cash gas the receipt. Anderson’s name on signed home, from remove a rifle

While in the motor Davis observed defendant handgun defendant remove a case and show it to Schroff. She also saw its Schroff, said, you like to check would from under his seat. Defendant “Mr. Davis, said, at Schroff and defendant gun out this gun?” Pointing a motel where he had Defendant drove to “bang, bang” laughed. and key the room to Schroff and told gave rented a room. Defendant apparently stay spent night in the room with Davis while defendant him he could the motor home. motel, a restau- defendant went to

After Schroff and Davis at leaving rant, named acquaintance Defendant found an about arriving p.m. for about an hour. Defendant they Bass and drank beer and talked Mitchell to a Defendant and Bass walked and party. he to drive around said wanted Tinker, Ines who he knew named Bass saw a woman nearby bar where home. and Tinker the motor Defendant drove Bass them. agreed join beer, three sat around on a hill and the defendant parked After purchasing defendant seemed particularly Bass did not think that talking. and drinking asked how defendant this occasion. When Bass depressed despondent home, him to use it said his boss allowed the motor defendant had acquired and a handgun pointed showed Bass a rifle on weekends. Defendant 6 a.m. was awakened about fell asleep at Bass. Defendant handgun homes, drove back Tinker and Bass to their After driving Bass. by Schroff at in the motor home. He was awakened motel and fell asleep to their respective places and drove Schroff and Davis 8 a.m. approximately had day after Schroff next saw defendant later Schroff employment. to San by airplane said he was going home from work. Defendant returned gave at the Defendant airport. leave the motor home Francisco and would When Schroff in the motor home. the rifle and binoculars that were Schroff this, that it was “all under worry, Schroff not to asked about defendant told control,” “a little jumpy” of it.” Defendant seemed and that he “took care Defendant driving. rearview mirror while looked frequently for the motor home. gasoline credit card to purchase used Anderson’s again San Francisco about 9 custody airport into at the Defendant was taken .32- a loaded carry bag containing evening attempting after p.m. X-ray screen- security station with an equipped revolver through caliber and he (defend- to his brother bag belonged device. Defendant said the ing his name as Thurman gave it. Defendant ant) did not know what identification, he eventual- initially carrying denied Although Anderson. and driver’s license Anderson’s credit card ly containing wallet produced itself, which bore Ander- had discarded the license (defendant extension son’s photograph). substation, a birth nearby gave to being transported

After Cazadero, is in Sonoma he lived in which January and said date of license number check of Anderson’s driver’s County. computer When a dates, he was Thurman in birth defendant said 20-year indicated a disparity found also held an the revolver was bag Anderson’s son. The which defendant, Seattle, personal and certain ticket to purchased airplane in the motor home. and his wife had stored effects which Anderson home, motor found Anderson’s police On Santa Barbara August lot of the San Luis in the damage, parking had some external which now 26. August found on body police Anderson’s was Obispo airport. chest, down, in a of trees grove under the with the hands body The was face area, nearby. There but no human trail with an animal trail very remote belt was unbuckled body. Anderson’s on the no or binoculars weapons were normally Anderson Although undone. was top pants and the button knife or there was no hunting, on when knife in a sheath his belt wore a immediate The empty. belt and the were pants pockets case on the cartridge wallet, or other weapons, casings, but no shell carefully area was searched effects were found. personal chest, had entered the times. One bullet

Anderson had been shot five side, body’s left angle at a to horizontally 45-degree travelling another the left ear and Three entered behind heart. bullets penetrated could deter- shots not be Although precise sequence in the back. mined, standing. in the chest while it was that Anderson was first shot likely immediate loss in blood with pressure, shot would have caused an drop This seconds, breathe although attempts five to to consciousness within fifteen for a minutes. have sounds few gurgling unconscious would produced while The very from the wound his heart. Anderson bled to death rapidly likely lying fired Anderson was remaining shots were most while unconscious. body

Bullets from the were consistent with bullets test-fired recovered defendant, the bullets were too weapon although from the recovered from positive deformed identification. permit

The Case Defense

An United testified no one was employee of the States Forest Service at the Barrel but that Springs campground Friday, August half In the area there were during was about full weekend. campground body The numerous cattle trails also used deer. where Anderson’s spot found a better than location to hunt deer and was one average from a walk of approxi- one one-half miles the campground, requiring forty mately minutes. behalf,

Testifying in his own that after Atascade- leaving defendant stated Monica, he Santa Wednesday looking ro on hitchhiked to work. By day noon the next evening same he decided return to Atascadero. a ride had hitchhiked to Santa Barbara. It was Defendant raining. accepted Anderson, Anderson from who was a motor home. introduced driving Anderson himself as Defendant said he was to Atascadero. “Andy.”1 going day he was or two and that defendant going hunting suggested said a 154. a They Highway him. Defendant at store join agreed. stopped 1 Andy but that Anderson’s was called at work he disliked wife testified Anderson name. nickname and not introduce himself would $100 De- and defendant food and beer. bought Anderson defendant gave fendant drank beer as Anderson drove to the Barrel Springs campground. home and they they

When reached the leveled the motor campground By started this time defendant had consumed seven setting up camp. they beers. At Anderson’s walked about a mile to eight suggestion quarter hole, bathe, to and but how intending upon seeing deep water swim they returned and after further discussion campground water was his 30.06 rifle and go hunting. hunting strapped decided to Anderson took At carried Anderson’s knife on his belt. Anderson’s defendant request, knife. also carried his own hand- hunting binoculars and another Defendant did not load his which was loaded. At defendant’s Anderson gun, request, rifle. Anderson carried ammunition in a case on his belt. cartridge been for about 45 minutes Anderson said some- they hiking

After had had sex having about afraid of venereal disease and thing being catching As defendant was ignored with two males before. Defendant these remarks. binoculars, him from the rear through the Anderson looking approached him. leg and defendant and to kiss Defendant attempted grab at him. Anderson turned his back away yelled angrily Anderson and pushed to defendant and the rifle down from his shoulder. Defendant could swung not see Anderson’s hands and the rifle. As thought loading Anderson was defendant, Anderson defendant slowly handgun turned toward pulled from his belt and fired. defendant could not Although emptied gun, recall actually beyond the first shot. firing seriously injured.

Anderson on the to be lying ground appeared rifle, knife, safety, For own case. He cartridge defendant took keys. also took the motor home Defendant ran from the scene and returned Driving recklessly, to the He left in the motor home. campground. tree, defendant hit a the rear of the motor home. He was still damaging part near frightened highway patrolman when he was stopped Atascadero.

Defendant later discovered Anderson’s wallet and watch in the motor home. He used Anderson’s credit card to make three purchases gas stations, room, for a motel airline San Luis buy Obispo tickets from pay Seattle, arrest- days being a small amount of Five after purchase goods. in San charge, spoke ed Francisco on defendant weapons possession Defendant told the officers investigating disappearance. officers Anderson’s lies, it had a series of that he had taken the motor home when including store, in the handgun been left outside a and that he had found the running eventually motor home. Under further admitted questioning, con- generally in manner Anderson, a the circumstances described shooting body. to the the officers testimony, and led his trial sistent with toward his attitude asked about was defendant cross-examination During dislike homosexu- he did not that although stated Defendant homosexuals. Defendant on” him. tried to als, “play like it if a homosexual he did not “The Camp,” called Portland in downtown an area denied frequenting homosexuals, Donnie man named a seeing or a area for pickup known as Oregon felony convictions previous Defendant admitted Marshall there. of a motor use and unauthorized robbery, forgery, escape, burglary, for vehicle. interviewed Beaber, had forensic psychologist, Rex a clinical and

Dr. en- to law statements a of defendant’s transcript and reviewed defendant that Anderson’s testified shortly after his arrest. Beaber officers forcement defendant, disease, might suggested as related fear of venereal stated contacts very few sexual having a of male homosexuals belong subgroup Ac- disease. almost with venereal morbid preoccupation with men and an Beaber Beaber, known. generally existence is not this cording subgroup’s Ander- following actions account of his testified that defendant’s further fatalistic with a alternating reaction was consistent with panic son’s death inevitably caught believed he would outlook in which defendant days his last as a free man. these were

Rebuttal men, Marshall, saw younger with a preference

Donnie a homosexual in areas of the summer of 1983 eight during defendant seven or times Defend- for male homosexuals. downtown Portland known as pickup spots a later During first met him. handgun ant when Marshall carrying When Mar- as a roommate. Marshall defendant meeting agreed accept defendant, did not seem if orally shall asked he could copulate way disturbed proposition. Coleman, unreliability of the opin- to the Dr. Lee testified psychiatrist, concerning disputed questions ions of psychiatrists psychologists unusu- fact, nothing mind. Coleman found an individual’s state of including regarding statement about a concern alleged al in Anderson’s significant memory every shot regarding claimed loss of venereal disease. Defendant’s cases genuine knowledge inconsistent with Coleman’s after the first was of amnesia.

Penalty Phase con- had been that defendant jury stating

A read to the stipulation robbery, forgery, degree second degree burglary, victed in of second Oregon addition, vehicle, degree escape. and second of a motor unauthorized use having on defendant’s conviction was based that the escape it was stipulated Correctional the State Oregon detail outside away from work walked when confronted without resistance given up and that he had Institution County correctional A Santa Barbara near his hometown. officer police in involved had not been witness that defendant testified as a defense officer in the he had been housed the 14 months during any disciplinary problems County jail. Santa Barbara Special Issues and Circumstance

Guilt Felony Prior Convictions I. With Impeachment his motion denying erred in that the trial court Defendant contends with prior preclude impeachment Code section under Evidence was, as a conviction for escape that his felony argues prior convictions. He law, erred that the trial court for and impeachment, matter of inadmissible ruling 352 in under Evidence Code section to exercise discretion failing defend- allowing prejudicial, error in impeachment on the motion. The prosecu- were exploited his five convictions prior ant because argues, defendant referred to to the when during argument prosecutor tor robbery for involved conviction prior as a and because “gangster,” in this proceeding. charged against same offense any defense its case-in-chief but before had rested After prosecution Code moved under Evidence been defense counsel presented, evidence had felony convictions. Counsel with impeachment prior 352 to preclude section for second felony Oregon convictions prior that defendant had stated conceded that defendant robbery. Counsel forgery, degree burglary, objected convictions but forgery burglary could be with impeached replied conviction. robbery prosecutor with impeachment convictions, three noted defense felony defendant had five prior I, article section Citing theft auto. grand and also escape counsel section (hereafter 28(f)),3 Constitution of the California (f), subdivision all five convic- could be with impeached that defendant argued prosecutor theft auto grand he was unaware of Defense counsel then stated tions. 2 substantially may probative if value is exclude evidence its “The court in its discretion consumption of (a) undue outweighed by probability that its admission will necessitate issues, confusing or mis danger prejudice, (b) of undue time or create substantial Code, jury.” (Evid. 352.) leading the § 3 any any pro “Any felony person in criminal 28(f) prior conviction of provides: Section purposes juvenile, subsequently used without limitation ceeding, shall whether adult felony prior When a proceeding. criminal impeachment of sentence or enhancement offense, open any felony proven to the trier of fact it shall be is an element of conviction court.” charge. of a lesser convicted had been defendant and believed conviction im- irrelevant for conviction, it was argued counsel escape Regarding purposes. peachment with prior impeachment the motion to preclude court denied

The trial elicit- testified, immediately counsel When defendant convictions. felony robbery, degree second felony convictions: of five prior ed his admission vehicle. use of a unauthorized and burglary, forgery, escape, were commit- in this proceeding against charged The offenses the June 1982 8 on of 28(f) part Proposition of section after adoption ted in ballot, this court’s decision tried before they were Primary Election 719, 696 P.2d Cal.Rptr. 38 Cal.3d 301 (1985) v. Castro 111]. People [211 by the not dispelled to a subject presumption, is thus ruling The trial court’s Code under Evidence record, exercise its discretion the court failed to for felony impeachment. convictions prior 352 to control the use of section 378, 389, Cal.Rptr. fn. 9 v. Collins (1986) (See People P.2d 173].) 722 defendant, to decide step the first is by the issues raised addressing excludable in the trial are admissible or (1) convictions prior

“whether (Collins, 42 law.” supra, as a matter of (2) or inadmissible court’s discretion if its as a matter of law A is inadmissible at conviction p. 389.) involve moral necessarily turpitude.4 do not elements adjudicated least context, means moral 317.) turpitude 3d at In this Cal. (Castro, supra, p. at (Id. kind.” any pp. a “moral of depravity to do evil” or a “readiness issue, is conviction only escape at the five convictions 315.) prior Of is Because the issue involve moral turpitude. defendant not to asserted dissent, however, of whether the crime we also consider by the raised moral involving turpitude. a vehicle is a crime unauthorized use of force, (b) in subdivision of without as defined The crime of escape 4532,5 in v. Wal- turpitude held to be a crime of moral section 4 felony are holding prior inadmissible as a matter of law grounds conviction Other permit 352 to its use for Evidence Code section an abuse of discretion under that it would be (Collins, su felony operation of law. has status impeachment and that the conviction lost grounds has these as neither 389-390.) here consider either of pp. We do not pra, 42 Cal.3d placed in issue defendant. been 5 with, for, felony is charged or convicted of a who “Every prisoner arrested and booked camp who industrial road or any county city jail prison farm or or or or industrial confined custody any county lawful of any county or who is road or other work engaged on is 4011.9, attempts escapes or who pursuant confined to Section person, or or who is officer camp road or from county city jail, prison, farm or industrial or industrial escape from such going re engaged in or to or custody charge of him or her while person officer or person lawful custody in whose county officer turning work or from from such 4011.9, felony is, guilty custody pursuant to Section he or she or from confinement As noted Cal.App.3d

decker 650]. decision, involves either necessarily without force or violence escape that deceit, trust, the escape willingness

breach of or stealth to effectuate and a of violent to law enforcement officers injury to incur the serious risk in the an bystanders process recapturing escaped pris- involved typically reasoning escape Waldecker hold that agree oner. We with the necessarily moral involving force is a crime turpitude. without Stat under Revised Oregon Defendant was convicted the provisions Having that a commits if person escape “(b) section 162.155 stating utes custody felony, or of a the from guilty person escapes been convicted found from a correctional “(c) escapes as a result thereof” or the imposed person Security jurisdiction Psychiatric under the facility; or while otherwise Board, of from this state without authorization departs Review the person release This to a a work applies person placed the board.” provision is for the facility job who fails return to the when his concluded facility to 2 P.2d Defendant 741].) 152 day. (Kneefe (1970) Ore.App. Sullivan [465 no involves or no deceit and little or maintains that such conduct little poses force, as both Escape risk of violence. We without defined disagree. stealth, law, de involves some form of Oregon necessarily California ceit, trust, of and the for violence is when potential always present or breach Waldecker, felon an is of escaped recaptured. Accordingly, holding for escape 195 to defendant’s conviction supra, Cal.App.3d applies by Oregon defined law. vehicle

Before offense unauthorized determining Oregon whether necessary a crime of to address turpitude, respondent’s use is moral is this that issue with conviction argument any regarding prior impeachment raise it in court. As must be deemed for failure the trial expressly waived shows, limited to impeachment the record defense counsel be proposed During for the discussion forgery burglary. convictions prior arose as convictions included one prior to whether defendant’s other dispute resolved, dispute theft some lesser Before this grand for auto or offense. motion, had 28(f) trial court denied the the view section expressing impeachment. it of discretion to exclude conviction for deprived prior have stated While it would have been better for defense counsel to practice objection for the record that defendant’s included unauthorized-vehicle- conviction, objection readily is inferable and the formal use scope issue for was not review. required preserve statement law, the crime Under “A commits of unauthorized person Oregon takes, control of a vehicle exercises (a) person operates, use when: [¶] violence, and, by impris- escape punishable escape attempt if such or was not force or months, years consecutively, or prison state 16 or three served onment two or (b).) county year (§ . jail exceeding . . .” subd. in the one

1011 over, . . . consent of the another’s vehicle without in or otherwise uses rides construed This has been 164.135.) . . provision (Ore.Rev.Stat. owner. § the rightful posses- manifest an intent to deprive “that the actor to require use rightful possessor’s interfere with the or to otherwise sor of possession (State P.2d Ore.App. . . . v. Douthitt the vehicle differ defined does not the offense thus 1265].) For present purposes, Code, (Veh. of a motor vehicle taking from unlawful significantly driving moral uniformly turpitude held to involve a California offense 10851), § 809], Rodriguez (1986) Cal.App.3d (People vehicle use We conclude that unauthorized cited). and cases there necessarily moral involving is likewise an offense (Ore.Rev.Stat. 164.135) § turpitude. or excluda felony convictions were admissible

As defendant’s prior trial ble in the trial discretion for purposes impeachment, court’s only in its failure to exercise discretion. As defendant court’s error consisted testify, did “a begin assessing prejudice making prelim we the process convictions, inary taken prior determination of the effect of probable on the trial.” at together, (Collins, p. 390.) outcome of the supra, may “reasonably The error be harmless if it is proba deemed we conclude a not have been ble that result more favorable to the defendant would error—i.e., in reached the absence of the Castro that the admission of the convictions did not the outcome . . . .” italics prior change (Id. p. conclusion, If original.) judg we are unable to reach this reversal of the ment will be required for the limited the cause to the purpose remanding trial court with to (Ibid.) directions exercise its discretion the matter.

Undertaking analysis, very this we note that the a prosecution presented case. It strong was that defendant killed Anderson. Proof that undisputed robbery was the motive for the the remote killing included location shooting, defendant’s and of the murder ownership possession weapon, having Anderson’s been shot five times three clustered (including tightly ear), body shots behind the left the removal of items from Anderson’s keys his and the case and knife sheath taken from (including cartridge Anderson’s defendant’s continued of Anderson’s belt), possession property arrest, his to the time of and (including wallet) flight his and defendant’s up initial falsehoods. testimony—i.e.,

The that killing given by account of the defendant his rifle, Anderson made a motion with the that defendant was in threatening shots, fear of his life he the intent take when fired fatal and that to Anderson’s formed after not property only was Anderson’s death—was by any utterly corroborated other evidence and failed to plausibly explain why why carefully defendant shot Anderson five times and defendant then De- before to motor home. returning

removed Anderson’s possessions ! load the that Anderson did not testimony request fendant’s that was at his rifle, handgun, provided compel- while defendant all carried loaded along robbery to commit evidence defendant had formed the intent ling that campground. before leaving reached that his of how he and Anderson argues

Defendant explanation with the shootings physical the scene of the was credible and consistent he made and motive was because robbery implausible evidence that relatively unpersua These are property. arguments little use of Anderson’s way The of some events in no plausibility description sive. defendant’s j credibility of other his innocence or establishes implies portions may well concluded Anderson voluntar testimony. jury have that went this and that defendant’s narrative to ily up scene of the shooting was,more would less The other evidence noted previously or accurate. point had inevitably lead a reasonable to conclude defendant nonetheless this the intent rob Anderson and had waited until formed previously moment, was in remote area the risk of when Anderson and opportune nil, virtually carry or out his Defend observation interruption plan. hardly ant’s failure make of Anderson’s greater property point use Defendant far from home and did not have a vehicle defendant’s favor. missed, certainly his own. would he could Knowing Anderson means to indefinitely continue Anderson’s vehicle lacked the driving rifle motor to cash items such as the or the transport large convert “only” That tape home’s player refrigerator. appropriated wallet, cards, effects, Anderson’s credit after the motor personal using binoculars, not away home for and the rifle and does days giving ¡three he lacked intent to rob he shot Anderson. show when persuasively The admission of the three convictions for could impeachment prior credibility have affected the assessment of defendant’s significantly jury’s because, credibility even those his about as priors, suspect without as he properly impeached could have been. Defendant conceded was possibly testimony his that he felony during two convictions and admitted prior with identity how came into had lied about his own and about repeatedly of Anderson’s possession property. be- challenged

Defendant that the three were argues priors prejudicial with a they cause he was bad implied thoroughly person propensity But the of defendant as a very portrait “gang- commit crimes charged. would as vivid if the court had excluded ster” have been almost even use, and convic- robbery, escape evidence of the unauthorized vehicle prior convic- any tions. The have event of defendant’s ¡jury prior would learned tions for and and there was evidence forgery burglary, undisputed made liberal use carried a on his had commonly person, defendant handgun death, or remorse after his and showed no concern Anderson’s property it is that admis shooting. reasonably We conclude regarding probable the outcome of sion of the three convictions did not challenged prior change trial, the error in to exercise discretion was harmless. failing and so 42 Cal.3d at (Collins, supra, 391.) p. Alleged

II. Character Evidence testimony Defendant prosecution contends certain adduced irrelevant, over objection his counsel’s have been excluded as should evidence, may inadmissible character because value it probative and have had was of undue defendant. The outweighed prejudice risk virtually evidence thus includes all Daniel Crothers challenged testimony of Marshall, Schroff, and Donnie Steven testimony those portions Davis, Terry stating and Mitchell Bass that defendant pointed handgun at them in an manner. Defendant also contends the trial apparently joking court in failing erred to instruct the sua limited sponte on the admissi- bility of this evidence.

Testimony Daniel Crothers selection,

During jury the trial court conducted a hearing prosecu tion’s motion in limine to admissibility testimony by determine the pro posed prosecution witness Daniel Crothers. After the hearing, testified, which Crothers the trial court sustained defense to some objections testimony, Crothers’s proposed objections testimony but overruled that Crothers had observed defendant on five or six carrying handgun occasions the summer during why of 1983 that when he defend asked ant carried the gun, at him and “I’ll pointed weapon replied, waste any mother fucker that screws with me.” Relying on Evidence Code 350,7 1101,6 sections defendant contends it to admit was error this testimony. 1103, 6“(a) Except provided as in this in per section and Sections 1102 evidence of a (whether son’s character opinion, or a trait his or her character the form of an evidence reputation, specific or evidence of conduct) of his or her instances is inadmissible when occasion, prove offered to specified (b) her conduct Nothing pro or on a in this section [¶] crime, hibits the person wrong, admission evidence that a committed a civil or other act motive, intent, when prove (such relevant to some opportunity, preparation, plan, fact as accident, knowledge, identity, absence of prosecution mistake or or whether a in a reasonably for an attempted good unlawful sexual act or unlawful sexual act did not and in acts, consented) faith believe victim disposition that the his or other than her commit such to (c) Nothing admissibility support in this section affects the of evidence offered or attack [¶] to Code, credibility (Evid. 1101.) of a witness.” § 7 Code, 350.) “No except (Evid. evidence is admissible relevant evidence.” §

1014 667, P.2d Cal.Rptr. Cal.3d Rodriguez (1986)

In admissibility of the defend regarding contention rejected we a similar 113], him. tried to arrest officer who any police he would kill statements that ant’s to prove victim is relevant threat against 'that a defendant’s Noting murder, is admissible that a threat generic for intent in a prosecution brings evidence intent where other homicidal show the defendant’s threat, the state concluded that of the we scope victim within the actual 1101. Code section under Evidence and not excludable ments were relevant under an rejected argument We also 756-757.) at (Rodriguez, supra, pp. 352, of an probative that the evidence was observing Evidence Code section 3d at cumulative. Cal. (42 case and not element of the prosecution’s essential 757-758.) pp. way in the anyone got kill who that “he would

A defendant’s statements received evidence to have been properly were likewise found of his plan” 45 Cal.3d v. Thompson (1988) murder. (People in a for capital prosecution 245, 86, Although prosecution 753 P.2d 37].) Cal.Rptr. 109-110 [246 thwart de had attempted evidence that the victim no direct presented threat, the evidence and thus was within the scope plan, fendant’s where no other motive motive a case admissible to provide possible {Ibid.) killing apparent. admissible, decision, exception under the state-of-mind we held a third Code, “that he a defendant’s statement hearsay 1250),8 rule (Evid. to the § a crime.” {People if he committed hesitate to eliminate witnesses would not P.2d 1189].) Karis 634-638 Evi- statement was barred an that the rejected argument we Although of and circum- that “the content Code section we cautioned dence examined both carefully are made must stances in which such statements the state-of-mind excep- statements fall within whether the determining tion, in accordance with his that defendant acted circumstantial evidence intent, of the evidence value assessing probative and in whether stated con- 636.) We (46 p. effect.” outweighs potential prejudicial declar- prove threat is admissible generic that evidence of a cluded statements were in which the of mind “unless the circumstances ant’s state made, time, state of mind evidence that the suggests or other the lapse 8 existing state of the declarant’s then “(a) Subject evidence of a statement to Section intent, motive, mind, emotion, design, plan, (including a statement of physical or sensation hearsay rule when: bodily health) not made inadmissible feeling, pain, or is mental mind, emotion, physical state of “(1) prove the declarant’s The evidence offered action; or issue in the when it is itself an sensation at that time or at other time The; of the declarant. “(2) prove explain acts or conduct evidence is offered to or memory or belief “(b) evidence of a statement section does not make admissible This Code, 1250.) (Evid. prove the remembered or believed.” fact § (Id. of the offense.” charged and no existed at the time transitory longer was at p. 637.) one before the

Here the made month approximately statement was Defendant why carried a charged handgun. offenses defendant explain this one-month and carry gun throughout period continued to the same there the state of demonstrated indicating were no circumstances that mind offenses, time by charged the statement had ceased to exist the of the which committed the same gun. were with limine, rely

In the was forced to ruling necessarily on motion in the court on the what issues would be representations parties regarding disput- ed trial. that was during recognized charged the Both defendant parties theories, with first felony-murder murder on both and degree premeditation that identity defendant’s as the killer not be and that self- disputed, would be in defense would issue. In this understanding, accordance with self-defense, was “preinstructed,” before evidence on presented, both first murder degree (i.e., theories premeditation felony-murder), various lesser included Although offenses. in prosecutor closing argument conceded there was insufficient evidence support premedi- tation theory, theory remained in issue trial throughout and was again covered given instructions at the close of guilt phase. addition, circumstance, robbery-murder special because trial was held after our decision Carlos Superior Court 79, 672 P.2d but Cal.Rptr. 862], before our decision Anderson (1987) Cal.3d 1104 intent 1306], placed issue, kill at and the jury was so instructed.

The jury could reasonably interpret (“I’ll defendant’s statement waste any mother fucker that with me.”) screws to mean he had a preexisting anyone intent to kill who interfered with him or his desires thwarted or, words, plans in other to kill on slight under provocation circumstances where he had no right of self-defense. testimony Crothers’s thus provided circumstantial evidence that the killing of Anderson was intentional and was not required self-defense. Under defendant’s version the killing, which motion, the trial judge considered ruling on Anderson was with interfering defendant a sexual advance making making gestures awith rifle which defendant knew to be unloaded. Crothers’s testimony an inference that supported responded to Anderson’s deadly conduct with force even though defendant realized he was not in imminent danger great bodily injury. death or If the jury determined did, from other evidence as it presented, eventually defendant killed in a robbery, course of testimony provided Crothers’s evidence that the than killing intentional rather or in to a response accidental threat of 1016 an testimony deadly by robbery supported the victim. Crothers’s force to deadly intent to force

inference that had a use preexisting defendant rifle) by with an (like resistance unloaded perceived gesture overcomp a by interfering the from with defendant robbery victim or to victim prevent the witness. Because robbery the and reporting becoming prosecution kill, to claim of self- evidence was relevant to intent to defeat the prove 350, nor, defense, it was inadmissible Evidence Code section not made noted, 1101.9 Evidence section for the reasons barred Code sec- Before! Evidence Code completing weighing process required the 352, the be prosecution the what other evidence would tion court inquired In claim the prosecutor counter the of self-defense. presenting reply the the the three be- gunshot (particularly mentioned wounds position trigger of defendant’s ear), stronger-than-normal pull hind Anderson’s as indicat- handgun, belongings, and defendant’s of Anderson’s possession kill in self-defense. In Crothers’s ing ruling that defendant did not Anderson 352, noted that testimony admissible under Evidence Code section the court cumulative,” the undue merely it would!be “not would prejudice value was slight,” probative and that the “considerable.” “quite Because intended to offer other evidence which would prosecution facts, testimony tend to the same Crothers’s cumulative. prove all evidence required But trial courts are not to exclude cumulative if are prove has substantial relevance to material facts which evidence case, “merely hotly (See contested central to the it is not cumulative.” Anderson, 86, 115-116; 45 Cal.3d People Thompson, supra, People 1104, testimony 43 And 1137.) por Cal.3d while Crothers’s supra, violence, trial court trayed dangerous person as a inclined to defendant Karis, obliged (See was not for this reason exclude it. supra, carefully weighed The record indicates the trial court 637-638.) undue value of on the risk of the evidence prejudice against probative intent did not issues of to kill and self-defense. We conclude trial court abuse its under Evidence Code section 352. discretion Testimony Marshall Donnie testified, rebuttal, objection, Donnie Marshall over defense of oral and that

he had solicited defendant to an act perform copulation had no also testified anger proposition. at the He displayed 9 unnecessary Evidence Code This conclusion makes it decide whether limitations of ar apply prosecution enactment of section continue to of crimes committed after I, Constitution, (d), “Right to Truth-in-Evi ticle section subdivision California (See provision of 8. Proposition dence” v. Harris 619].) by had in of frequented seen defendant on several occasions areas Portland contends evidence have been homosexuals. Defendant now that this should irrelevant, on collat- violating excluded as the rule against impeachment evidence, matters, as its probative eral character because improper substantially outweighed by value was the risk of undue prejudice. testimony a tending any Evidence to contradict of witness’s is rele- part Code, 780, v. (Evid. (i); vant for subd. People purposes impeachment. § 735, 405, 742 Lavergne (1971) 77].) Cal.3d De- fendant testified that con- concerning Anderson’s statements homosexual him, duct angry, made him that he dislikes such having remarks directed and that he investigator told he “started madder and mad- police getting der [upon hearing statements], Anderson’s because he was to talk starting all that Evidence that defendant had received a crap.” proposition sexual from Marshall without showing annoyance tended to contradict this testimony and thus was relevant for impeachment. testimony

Marshall’s not violate against did the rule impeachment 86, collateral (See 110; matters. People Thompson, supra, Peo- ple v. Lavergne, supra, 742-744.) Defendant’s mental state during immediately the moments was not a collater- preceding shooting issues, al matter; it was critical to several importance regard including “heat of as an passion” element of voluntary manslaughter, one the lesser included jury offenses on which the was instructed. The prosecutor’s ques- tions regarding alleged defendant’s the reasons it were anger and proper to probe immediately defendant’s mental state before the shooting demonstrate testimony. of his implausibility above,

As noted testimony Marshall’s was proper impeachment evidence and was not admitted to character prove disposition. defendant’s Ac- cordingly, testimony Marshall’s was not made inadmissible Evidence however, evidence, Code 1101.10 section argues, Defendant that this because character, of its tendency degrade his have should been excluded under Evidence reason, Code section 352 fn. (see likely ante). would maintains, that because seen defendant was Marshall areas frequented by homosexuals and also for drug dealing known and theft offenses, homosexual, user, defendant was himself probably drug and a thief. himself

Defendant in issue placed knowledge of homosexual behavior patterns by offering testimony of Dr. Beaber the remarks defendant relies, 10The limitations Evidence sections Code 786 and on which defendant also apply I, do charged case this as the crimes were committed after enactment of article Harris, (d), section (See subdivision supra, of the California Constitution. 1047, 1081-1082.) Cal. 3d of a of homosexuals subgroup attributed to Anderson were characteristic widely The prosecutor this behavior was not known. and that distinctive testimony by showing to this that defendant had could properly respond thus have acquired could been seen areas homosexuals frequented in these through behavior knowledge particular patterns experiences areas, like Marshall. That these same areas including persons contacts with irrelevant, but and offenses was the drug were also site of property volun- on not the offer and was testimony part proof this was point make a timely specific teered As defendant did not and witness. not review- testimony, or this the issue is objection particular move to strike Code, 353; Rogers (1978) on appeal. (Evid. able § 1048].) P.2d 547-548 to motion Evidence section defendant’s under Code response testimony, trial court value of Marshall’s as carefully weighed probative in risk of to the offer of undue represented proof, against prejudice The in fact defendant. trial court excluded evidence that defendant had orally and Marshall. copulated by Marshall’s had been accepted proposition no in court’s to admit the We find abuse of discretion the trial ruling testimony. balance of Marshall’s Use Concerning

Testimony Weapon Postoffense Schroff, Davis, Bass Prosecution and testified that defend witnesses testified, a rifle at them in a manner. Davis in pointed handgun joking ant or addition, said, laughed wickedly that and as he “bang, bang,” his at her. these incidents handgun According testimony, to pointed occurred defendant was of Anderson’s motor home and possession while a or two Anderson’s day killing. thus within following testified, Before these held on motion hearing witnesses defendant’s their The motion’s that the testimony.11 grounds to exclude were anticipated irrelevant, or evidence was that it was to criminal prove disposition offered character', value any and Evidence section probative that under Code evidence outweighed by the risk of undue that the prejudice. Arguing mind following killing, was relevant show defendant’s state of painted stated: are that counsel’s prosecutor “People submitting [defense] and sad of his a man and wants drink being client as saddened picture self-defense, he had to because of this a need of panic, homosexual man, take The shoot the and as an decided to afterthought property.” the state further that evidence would be offered “to show prosecutor argued 11 said, According “this is proof, Bass have testified that defendant an offer of would stick-up” laughed pointed the defendant’s he rifle at Bass. The trial court sustained objection testimony. proposed this time, of mind man has at not remorse or sadness but of a this one of executing question cavalier attitude about someone. That it wasn’t a crime of That it Defense counsel argued wasn’t self-defense.” panic. remorse or lack on or response August August defendant’s thereof 19th 20th killing was not relevant to his state of mind at the time of the then August 18th. noted that evidence also showed prosecutor defendant’s reckless manner with firearms. The trial court overruled the objection, stating that “the fact that he carried a weapon loaded [defendant] with he way was cavalier handled it is relevant to conducted how himself firearms in case.” with this

That defendant was his handling cavalier reckless in of firearms does appear theory relevant to issue this A case. that Anderson’s death was caused handling defendant’s careless of firearms would be addition, inconsistent with both any defense prosecution positions. possibility killing by the was accidental and caused carelessness was virtual- ly eliminated evidence the position of number and of the victim’s wounds, and evidence force that the to the required pull defend- trigger ant’s was handgun double the approximately required that average handgun. hand,

On the other the was in prosecutor arguing correct that defendant’s state of after mind the could be relevant in killing determining how the Indeed, killing occurred. defendant’s state of mind following killing the was explicitly issue Dr. placed testimony Beaber’s that con- defendant’s duct this time was during consistent with a state alternating mental between fatalism, a panic mental more the likely, state defense to argued, follow killing self-defense a premeditated than murder. of Evidence post- offense conduct arguably inconsistent with panic both fatalism was admissible to rebut Dr. testimony. Beaber’s considered,

When the admissibility gun-use of the evidence was Dr. Bea- ber yet had not testified and the issue admissibility was of the presented evidence for the prosecution’s case-in-chief than in rather rebuttal. How- ever, essence, when argued, prosecutor that the evidence would mind, contradict defendant’s own statements postoffense about his state of defense counsel did not that object had prosecutor mischaracterized the nature of the theory defense or that the prosecutor’s admissibility consti- Code, tuted an improper anticipation (See defense evidence. Evid. § to exclude evidence must clearly state specific ground objec- [motion Instead, tion].) defense argued only counsel that defendant’s state of mind a day or two after the shooting was not relevant to his intent at the time prove of the shooting. evidence, to this

At of the on the motion exclude hearing the time defend- intended include the case-in-chief the evidence of to prosecutor Thus on the argued assump- to the motion was police. ant’s statements killing would be before the placed tion the defense version statements to by way case-in-chief defendant’s during the prosecution’s may be understood assumption, prosecutor Given this officers. inferences from dispel arising have evidence would argued gun-use As it these defendant’s state mind. regarding postoffense statements out, was not turned evidence of defendant’s statements police presented case-in-chief, and thus the during postoffense gun-use the prosecution’s it not been ground vulnerable to a motion to strike on the had evidence was However, such in the case-in-chief. no connected other evidence properly! may and the failure be deemed waiver of motion to strike made (Ault v. Co. evidence. International Harvester objection gun-use to the P.2d 74 A.L.R.3d A;s testimony, defense use Dr. Beaber’s a motion 986].) planning event, have futile in the same evi- gun-use to strike would been since dence have admissible in rebuttal. been Would admitted at the time arguendo improperly the evidence was

Assuming was, it favorable verdict have been reasonably is not more would probable would have come rendered had the evidence been excluded. evidence testimony it was cumulative to the of Crothers that defendant eventually, case, and, it had at him the other evidence pointed handgun given firearms unlikely that the issue of defendant’s carelessness with highly jury’s d role in the verdict. played significant Instruction Limiting jury, to instruct the failing

Defendant contends the trial court erred sua on the limited for which could consider the testimo sponte, purposes ny testimony and Marshall and postoffense gun-use Crothers Schroff, duty have no to generally Bass. Trial courts pavis, admissibility instruct evidence in the absence of a request. on limited 458, 534, 43, 634 Collie 30 Cal.3d 63 P.2d (People (1981) Cal.Rptr. [177 v. duty 776].) 23 have left that such a possibility A.L.R.4th We open extraordinary in which be found to exist in “an case might occasional evidence evidence of offenses is a dominant unprotested past part accused, relevant minimally and is both against highly prejudicial extraordinary an any (Id. 64.) This is not such legitimate purpose.” p. case, however.

1021 Cautionary Instruction Statements Preoffense error in trial failure to CALJIC give Defendant court’s urges 2.71.7,12 No. of an accused’s statements. This regarding preoffense evidence instruction, given when must be sua v. Williams applicable, sponte. (People 834, 1268, 1315 v. (1988) Cal.Rptr. 221]; People 45 Cal.3d 756 P.2d [248 1189, 71, 795]; 45 1224 756 P.2d Bunyard (1988) Cal.3d Cal.Rptr. [249 147, 673, v. Heishman 45 166 753 P.2d People (1988) Cal.Rptr. [246 629]; Beagle (1972) Cal.Rptr. People [99 2.71,13 1].) gave Here the trial court CALJIC No. advised the which caution any view with evidence of out-of-court statement charged cautionary offered to establish his offenses. This broad guilt instruction evidence of statements and ade encompassed preoffense quate in this case. v. James 286-287 (SeePeople (1987) Cal.App.3d Cal.Rptr. 691]; Kozel Cal.App.3d 208].) Defendant was not prejudiced by the omission of CALJIC No. 2.71.7.

III. Prosecutorial Misconduct

Referring testimony Crothers’s that defendant carried a and stated gun me,” would “waste mother fucker that screws with prosecutor argued to the jury that defendant “is of a self-styled somewhat gang- bad, man, ster. . . . He’s likes think that he’s a bad That’s the tough. kind of defendant we have here.” objected Defense counsel this evidence, “improper type inference from improper any evidence that was submitted.” The court overruled the objection, “this is a stating that matter the jury to consider evaluating what evidence was and what the proper inferences from it are.” The prosecutor returned to this theme during his rebuttal argument. After again referring to Crothers’s testimony, the prosecutor stated a that defendant “man was who feels the carry need to a bad, gun” and that defendant “thinks he’s in colloquial 12CALJIC No. 2.71.7 you may states: “Evidence has been received from which find that an oral [design] statement of [plan] by was made the defendant before the [intent] [motive] committed, charged your duty offense with which he is was It is to decide such whether a [¶] by statement made was the defendant. ought Evidence of an oral statement viewed [¶] noted, with caution.” Unless otherwise all references to CALJIC to the instructions are (1979). fourth edition revised 13 case, (1980 rev.), No. given CALJIC 2.71 in this states: “An admission is a statement by made defendant other at his trial acknowledge guilt than which does not itself his of the trial, crime for guilt which is on but which prove statement tends to when considered evidence, with the judges rest You are the exclusive as to whether the defendant [¶] admission, so, made an you and if whether part. such statement is true in whole If or statement, you reject should find that the you defendant did not make the must it. If find that true, part, you may it is true in part you whole or in consider that which find to be Evi [fl] dence of an oral admission of the defendant should be viewed with caution.”

1022 hombre, words, Defend tough, tough gangster.” bad little meaning Crothers’s argument ant that the constituted misconduct because contends admitted testimony urged for a limited and the its purpose prosecutor was i.e., as evidence of defendant’s character or use for different purpose, 1101, subdi criminal a use Evidence Code section disposition, precluded 6, (a) vision fn. (see ante). use is not in itself miscon jury argument

The of opprobrious epithets 586, 983, 47 1030 (People (1989) Cal.Rptr. duct. v. Edelbacher Cal.3d [254 Kaufman, J.); (1983) 766 P.2d Fosselman (lead opn. People 1] 1144];People (1958) Cal.3d v. Wein Cal.Rptr. [189 hand, On use of 457].) urging P.2d the other it was evidence for a other than limited for which purpose purpose Here, however, defendant argument. admitted is the evidence that improper commonly carried a not for a limited gun was admitted purpose noted, evi not As improper. previously references it were prosecutor’s “I’ll mother any dence of statement to waste (i.e., defendant’s Crothers fucker with for the limited me.”) purpose that screws was admitted limited intent at the time of the crime. This showing defendant’s motive and theory showing is in distinct from that defendant purpose predisposed crime, little to violent but terms of the on the it made jury impact the evidence showed was a prosecutor argued difference that the or “likes to he’s bad” use character “gangster” who think (improper than that the defendant had disposition) rather evidence showed arguing motive intent to kill who or interfered with him anyone annoyed ¡use Thus for motive misconduct (proper intent). prejudi cial on facts of this case.

IV. Instructions Self-defense Nos. jury language was instructed on self-defense in the of CALJIC 5.15, 5.51,

5.12, 5.17, 5.50, 5.52. Defendant error in the failure urges instruct 5.10 and language right also of CALJIC Nos. 5.1614 on felony. deadly (See use force to resist commission of and atrocious forcible 233, 526 Ceballos 477-479 now 241].) P.2d Neither of these instructions was Defendant requested. have may contends because the concluded they required were sodomy. deadly defendant used force Anderson to resist forcible against justifiable committed 14CALJIC No. 5.10 states: “Homicide is and not unlawful when any resisting person attempt an commit a and atrocious crime.” when to forcible atrocious provides CALJIC 5.16 of the term “forcible and No. alternative definitions felony, jury may “any and man- The be term the character crime.” instructed that the means the; threatens, reasonably to ner of or is believed the defendant commission of which threaten, bodily great great injury death or life so as to cause him a reasonable fear of bodily injury,” certain are forcible atrocious crimes as a matter of law. or that felonies and 1023 only general trial is to instruct sua required sponte “The court and on of law relevant to issues raised the evidence principles [citation] a defendant be on such defense particular appears relying defenses when v. and there substantial evidence to Ains support (People [citation].” 984, 568, 45 1017].) worth 1026 (1988) Cal.Rptr. [248 on, of, a theory record here does not reliance or substantial evidence show resisting sodomy. self-defense while forcible Defendant testified he shot after became his back angry, appear Anderson Anderson turned while rifle, made a toward ing threatening gesture load defendant with testify sodomized; the rifle. not fear being forcibly Defendant did he him. testify did believed Anderson to kill Defense counsel’s going was shot, argument jury acted in not fear being was fear sexually of being jury theory assaulted. The was on the instructed self- evidence; defense presented by the failure to sua instruct sponte of CALJIC 5.10 5.16 language Nos. was not error.

V. CALJIC (Willfully No. 2.21 False Testimony)

Defendant contends it was error the trial court to prejudicial instruct in the CALJIC 2.2115 language reject No. that the could entirety its testimony a witness’s to willfully found false in one material part. Defendant maintains that the instruction warranted evidence, superfluous and misleading, impermissibly altered the burden of proof. v. 879, People 208, Allison (1989) 894-895 Cal.Rptr. [258

771 1294], P.2d we approved line of long intermediate decisions appellate v. (e.g., 940, People Goodwin 202 (1988) Cal.App.3d 944-945 Cal.Rptr. [249 430]; 1413, v. People Blassingill (1988) 199 Cal.App.3d 1418-1420 [245 599]; 1537, Cal.Rptr. People Plager v. 196 (1987) Cal.App.3d 1546-1547 624]; v. Cal.Rptr. Reyes People (1987) Cal.App.3d 965-966 [242 v. Cal.Rptr. 752]; Johnson People (1986) 190 192-194 Cal.App.3d [240 479]; Cal.Rptr. People Hempstead (1983) [237 Cal.App.3d 412]; Cal.Rptr. Williams 67-68 Cal.App.3d 891]) holding that CALJIC No. 2.21 is a correct statement of the law and appropriately given evidentiary where there anis basis to support it. Defendant no provides persuasive reason to reconsider that conclusion. challenged language willfully 15The states: “A part witness false in one material of his testi

mony may reject testimony is to be distrusted others. You the whole of a who will witness fully unless, evidence, falsely point, has testified material you to a from all the shall believe probability variations, testimony of truth particulars.” favors his in other With minor this language appears in (5th 1988). now CALJIC No. 2.21.2 ed. in this evidentiary a basis for the instruction case. There was sufficient one had been conclude that or more witnesses jury reasonably The could Daniel Crothers in their To cite but one willfully testimony. example, false an testimony: Crothers described gave conflicting and defendant sharply said, “I’ll at Crothers and waste gun incident which defendant pointed me,” denied that the fucker with but defendant any mother that screws Crothers must necessari- ever took Since either defendant or place. incident willful, could have the falsehood falsely, testified and the found ly jury have| 2.21 given. No. was properly CALJIC (Possession Stolen VI. CALJIC 2.15 Property) No. of of 2.1516that giving was in the CALJIC No. jury language instructed for stolen “is a circumstance that property a false of explanation possession give show Defendant it was error to may guilt.” telid to maintains of An explanation instruction because evidence of his false for possession that could not a reasonable inference property support derson’s robbery grand was of rather than theft. guilty supported The instruction did not state that defendant’s false statements robbery. of the offense of The instruction was guilt only an as to inference because, concedes, a correct statement of law as defendant therefore an inference of either support guilt false-statement evidence would robbery. in the language suggested theft or instruction’s grand Nothing deciding intended to assist the which of these offenses defendant A that an instruction party may complain committed. on appeal incomplete in law and to the evidence was too or responsive general correct has or lan party requested appropriate clarifying amplifying unless Andrews guage. (People 28*5].)

P.2d event, of Ander- any explanations possession defendant’s false guilty were whether he was determining son’s not irrelevant property Schroff, robbery!rather grand than theft. Defendant told whom defendant friend, he as a regarded as a had been hired chauffeur apparently good who him use of the motor home. Defendant’s conduct by hunter allowed 16Asg case, person 2.15 stated: “The that a con in this CALJIC No. mere fact iven recently enough justify possession property stolen is not his conviction of the scious is, however, [i.e., robbery]. charged in Count II It a circumstance to crime of the information finding guilty To there be considered in connection other evidence. warrant a must with tending guilt. In this proof other conduct or circumstances of themselves to sustain con statements, any, you may contradictory if nection consider the defendant’s false gives may person property. reference to the If a false other statements he have made with may acquired property, possession stolen this is a circumstance account of how guilt.” tend to show

1025 committed that he the making supports this false statement an inference offense, the stronger crime because the more serious the the motive greater facts. conduct which defend- concealment of the true Thus the illegal for likely more to have ant’s false intended to conceal was been explanation a robbery-murder mere theft in self-defense. following killing a than a reasons, not error of CALJIC language For these it was to instruct in 2.15. No. During Proceedings

VII. Personal Presence Defendant contends that his state and federal constitutional rights trial, confrontation, trial, due and presence process, effective assis- public tance counsel were violated his during (1) jury absence view of the scene, clarification, murder a(2) regarding jury’s discussion for requests witnesses, (3) testimony and reading four his counsel’s during reading absence of the four testimony. witnesses’ View Jury

After no more witnesses be announcing would called during case-in-chief, the prosecutor requested jury view the area where Ander- body son’s was found. Defense counsel noted that defendant would have to be there right but that counsel did not want defendant “paraded around in handcuffs or . . . .” shackles The prosecutor denied that defendant be would of the “paraded jury front in those items.” There was no further discussion regarding handcuffs shackles the court granted the re- court, On the quest. following morning, defendant open personally view, waived his right to be at the present no reason for his giving decision. Defendant argues to be (1) right jury at the view be present could not waived; (2) waiver coerced because the alternative was appearing jury before the in shackles; (3) the court should have denied the request jury view shackling since the problem was insoluble. Although federal Constitution a criminal requires be at those of trial at present stages which his absence might detract from 806, fairness (Faretta v. 422 proceedings (1975) U.S. California 819, 562, 572-573, fn. 15 2525]), L.Ed.2d 95 S.Ct. it does not require [45 jury defendant’s at a presence (,Snyder view v. Massachusetts 291 (1934) 97, 674, 684-685, U.S. 117-118 L.Ed. 54 575]). S.Ct. 90 A.L.R. [78 law, our Under state a defendant has a be right present at a view v. (People Bush 68 Cal. 634 (1886) 169]), P. but the right may [10 waived (People Mathews 139 Cal. P. 416]; Even in 799]). capital (1975) Cal.App.3d Benjamin that a moreover, has never held cases, Court Supreme the United States at critical to be right present waive the constitutional defendant cannot of such trial, validity the recognized and we have expressly of the stages v. Robertson (See People law. of state constitutional waivers as a matter 1109].) Cal.Rptr. 48 Cal.3d 60-62 (1989) would be of the to right presence whether a waiver We need not decide the defendant in to a ruling requiring if the waiver was involuntary response assured to the Here the jury. prosecutor in visible plainly to shackles appear in jury before the not be paraded that defendant would defense counsel further argu- the without point counsel abandoned shackles and defense speculate from the court. We will ruling eliciting ment and without Furthermore, the this issue. have made on the court would what'ruling motivated in shackles concern about appearing to show that record fails view. jury at the presence to waive his for a view the granting request need not decide whether Similarly, we way had there been no to permit an abuse of discretion would have been from seen being to defendant resulting significant prejudice view without available to There were methods or other restraints. handcuffs jury,in remained Defendant could have minimize the risk of prejudice. avoid or view, during of the other hearing participants sight vehicle within jury without the him to attend the view thereby permitting for example, counsel requested on his Had defense person. restraints observing such issue, that some judgment of the support we ruling presume on have been Ac adopted. interests would competing accommodation jury for a view was grant request the trial court’s decision cordingly, of discretion. not an abuse Regarding Jury Inquiries

Discussions that a stating to the court sent a note jury its deliberations During found in on it had been number telephone with a name paper piece whether asking luggage), exhibits defendant’s (apparently one of the number was that any way telephone to determine whether there was to a access jury requested A note from the Donnie Marshall. second witness following by law enforcement officers interview of defendant’s transcript absence, counsel defendant’s The court discussed both notes with arrest. ques the answer both was closed to evidence since the case stating Both counsel a stipulation. unless there was negative tions would have to then called The court to, stipulate. and neither offered to analysis this agreed in the negative. the two inquiries and answered into the courtroom discussing jury’s inquiries Defendant now the trial court erred argues counsel in his absence. with trial, a defendant is not entitled to be

During personally present the court’s counsel outside the occurring jury’s presence discussions with or other matters unless the defendant’s bears a questions presence law reasonable and substantial relation to a full to defend opportunity against v. Jackson charges. (People 603, 618 P.2d A defendant a violation of the 149].) claiming right person al at trial bears the burden presence demonstrating that personal pres ence could have substantially (Id. 310.) benefited the defense. at p.

In People Bloyd (1987) Cal.3d 333 802], jury deliberations a during discovered bottle of Valium in the bathrobe, evidence, victim’s which had been received in and sent note absence, inquiring whether the bottle could be considered. In defendant’s defense counsel jury’s to the consideration of stipulated the Valium bottle. We found no violation of defendant’s of right presence because it was “inconceivable that the defense could do other than permit consideration of the bottle the jury” and thus defendant could not demonstrate that his absence his case or denied him prejudiced a fair trial. at p. 360.) {Id.

Here, concedes, as defendant evidence that he had Donnie Mar- kept shall’s defense, number in telephone only his could have possession hurt his since he had denied having close with Marshall. relationship The trial court’s response, effectively which precluded jury’s consideration of the fully paper, protected defendant’s interests. Providing jury with a tran- script defendant’s interview law enforcement officers could conceiv- defendant, ably have provided some benefit to since during interview defendant had made some statements testimony, consistent with his trial but it would also have prejudiced defendant reminding jury of numerous blatant falsehoods he had told during interview. Whether on balance jury’s review of the transcript would have benefited defendant is event, very doubtful. In both the defense and the prosecution had evidently made conscious decisions during the trial not to offer the tran- script Presumably evidence. defense counsel had discussed the matter with defendant before or the trial during and was aware of his views. Assuming arguendo urged would have his counsel to place the transcript jury, before the it is highly unlikely that both defense counsel and the would prosecutor agreed have to do so. Accordingly, defendant has not demonstrated that his personal could have presence substantially benefited the defense.

Reading Testimony During Trial Deliberations

The sent a note to the court deliberations during requesting read defendant, testimony of the trial ing a firearms autopsy surgeon, and a expert, defense witness who testified to defendant’s stated intention to hitchhike to Santa Monica. The court discussed this with counsel in request absence. Both the and defense counsel their prosecutor defendant’s waived to be defense right present during reading, waiving counsel also defend right ant’s was excluded from the presence. public reading testimony; the reading was not and took in the absence of the reported place court counsel. Defendant him now contends this denied procedure trial, trial, at rights and effective assistance of personal presence public counsel. ¡ facts, Bloyd, virtually identical we supra,

found rights no violation of the at trial or effective personal presence of counsel. We noted it was “inconceivable that the defendant assistance would not have at a jumped chance to have his version of the events pre- (id. jury” sented once more to the p. original) italics and stated authority there was no counsel indicating could consent to a reading testimony outside the of both presence (id. counsel and defendant at p. 361). Defendant maintains that Bloyd is not because no dispositive, primarily issue was raised in that case denial of the to a regarding right trial. public

The to right may trial be waived v. Cash 52 public (People (1959) 841, Cal.2d 846 P.2d 462]), may waiver from to implied failure [345 164, 622, object v. Hines 61 (ibid.; People (1964) Cal.2d 172 Cal.Rptr. [37 390 398], P.2d on another v. disapproved point Murtishaw People (1981) Cal.3¿ 733, 775, 738, 29 fn. 40 631 P.2d v. Cal.Rptr. 446]; People [175 758, Blanco 170 (1959) 760-761 P.2d Cal.App.2d 906]; People Tug- [339 520, well 32 525 P. (1917) Cal.App. 508]), may and the waiver be made [163 by defense counsel on defendant’s behalf v. Moreland 5 (People (1970) 588, 596 Cal.App.3d 215]; (1983) see v. Moore 140 Cal.Rptr. [85 508, 513 Cal.App.3d counsel has Cal.Rptr. right [189 487] [defense control court proceedings and make decisions involving defendant’s Boyd constitutional rights]; People (1978) A.D.2d 668 N.Y.S.2d Annot., 240]; Exclusion of Public Criminal Trial During (1956) A.L.R.2d 1452). Assuming right trial extends to the public deliberations, testimony reading during jury right effectively waived defense counsel.

VIII. Jury Denial Trial on Severed Count Before commenced on the capital charge, the court defend granted trial ant’s motion to sever from the other the count of the charges information of a conceala- in possession a convicted felon being defendant with charging returned, were verdicts phase and penalty After the guilt ble firearm. in the From statements charge. the severed to consider proceeded court had believed there and counsel the court that both record it is apparent to the court was tried charge The jury trial. been a waiver already that the conviction Defendant now contends found guilty. defendant was jury right his never waived expressly as he must be set aside charge this validity of defendant’s effectively concedes Attorney General trial. The an finding without the record reviewed Having independently argument. trial, will we right constitutional waiver express this count. the conviction on set aside and Deliberation

IX. Premeditation circumstance felony-murder special contends that Defendant willful, premeditated deliberate and only to applying must be construed as v. Belmontes (People this contention. rejected We have previously murders. Defend 310].) 794-795 conclusion. to reconsider our no reason persuasive ant provides Penalty Issues Mitigating Evidence Withholding X. below, counsel stated for defendant’s trial

During proceedings as a witness grandmother to call defendant’s record that he had planned brief, testified, would have phase. grandmother penalty birth, that his father shortly after his defendant’s were divorced parents times, that defendant was his mother four thereafter remarried twice and youth that as a by his rejected neglected parents, or at least defendant, his “to Counsel stated that shy, lonely, was and nonviolent. elderly grandmother . . . not want to his put credit as a human did being having trauma of to come kind of the emotional through experience that so, was testify.” request, grandmother here and And at defendant’s called as a defense witness. counsel, abide agreeing in

Defendant now contends that trial wishes, and defeated rendered ineffective assistance by defendant’s in a reliable determination assuring penalty interest independent state’s this case. capital 353 41 Cal.3d (1985) v. Deere People relies primarily

Defendant [222 defendant, 13, with his counsel’s In that case the 710 P.2d Cal.Rptr. 925]. consent, a special him and admitted charges against to the guilty pleaded the issue of penalty, waived trial on Defendant allegation. circumstance evidence, counsel, no mitigating presented the concurrence of again with The of death resulting judgment verdict of death. requested counsel, to defendant’s acceding that defense grounds reversed on evidence, ineffective assistance and rendered not to present mitigating wish verdicts capital interest in reliable ensuring penalty frustrated the state’s 505, also, 541- 363-364; Burgener People (1986) see (Pp. cases. 112, 1251].) 714 P.2d Cal.Rptr. [224 Deere, 353, recently 41 Cal.3d were supra, logical underpinnings Cal.Rptr. 48 Cal.3d 1194 (1989) v. Bloom People reexamined reliability that the required We concluded 774 P.2d 698]. “is attained when the prosecu in death cases penalty Amendment Eighth phases at the guilt penalty tion has its burden discharged proof a constitution and within the guidelines to the rules of evidence pursuant statute, under proper verdict has been returned al death the death penalty duly has considered and the trier of penalty instructions and procedures, evidence, has chosen to any, if which the defendant the relevant mitigating that a suggests Deere to the extent it 1228.) present.” (P. disapproved itself, evidence, in and of mitigating failure to present defendant’s (Id. constitutionally unreliable. at p. of death judgment sufficient to make a in this case is not to be judgment fn. the death 9.)17Accordingly, merely agreed defense counsel defendant’s as unreliable because regarded testify not be called to as a defense witness that his request grandmother the penalty phase. v. Guzman Cal.3d 915 in his client’s wish 917], the defense counsel acquiesced but defendant character evidence not be mitigating presented,

available We testimony phase. in his at the penalty described own background l>is was denied effective assistance a contention that the defendant rejected Deere, counsel, mitigating unlike some supra, noting in the 961.) Similarly, present Cal.3d at (45 p. evidence had been presented. case, officer’s jail evidence was in the form presented, some mitigating trial. pending conduct while incarcerated testimony good to defendant’s mitigat counsel should be forced to present The that defense proposition criticized objection soundly defendant’s has been evidence over the ing Bonnie, 74 Dignity (1988) the Condemned (See, e.g., commentators. of 1363, Carter, Integrity 1380-1389; Maintaining Systemic Va.L.Rev. respect: One searches the dis is remarkable in this 17Thedissent’s discussion of this issue Deere, 353, reasoning People supra, 41 Cal.3d acknowledgment of v. sent in vain for that the relies, controlling chiefly expressly disapproved, and that the has been on which the dissent Bloom, People supra, v. 48 Cal.3d 1194. precedent on this issue is now

1031 Mitigating to Present Counsel Court-Appointed Use Cases: The Capital of 95, 55 Tenn.L.Rev. (1987) Death Advocates Evidence When Defendant com As these Integrity].) Maintaining Systemic 130-142 [hereafter means to the client out, loyalty of attorney’s duty an point mentators forego whether the decision remember that always attorney “should ulti factors is non-legal because of or methods objectives available legally EC 7- Prof. Responsibility, .” Model Code (ABA . . the client. mately for over the de evidence mitigating counsel to present defense 8.) To require attorney’s paramount an with would be inconsistent objection fendant’s trust, for essential undermine the client and would duty loyalty of Moreover, and client. attorney between existing effective representation, otherwise would who cause some defendants duty such a could imposing self-representa of right their Sixth Amendment have done so to exercise 806) 422 before commencement v. U.S. California, supra, Faretta (see tion 351, 369 45 Cal.3d (1988) v. Hamilton the guilt phase (see People [247 of 121, 31, (1977) v. Windham 19 1109]; P.2d 753 Cal.Rptr. 8, retain control over P.2d in order to 1187]) 560 Cal.Rptr. 127-128 [137 in a loss resulting significant at the penalty phase, evidence presentation the guilt phase. defendants during for these legal protection to effective Sixth Amendment right a denial of the To establish counsel, counsel failed to perform a defendant must show that assistance of a determina reasonably and that it is probable with reasonable competence, absence of would have resulted tion more favorable to the defendant Fosselman, also, 572, 584; see 33 Cal.3d supra, counsel’s failings. (People 693, L.Ed.2d 466 U.S. Washington (1984) Strickland a matter generally 2052.].) 104 S.Ct. While selection of defense witnesses client, ultimate has attorney, tactics which the rather than of trial over control v. McKenzie (People attorney incompe that an acts necessarily it does not follow 769]), P.2d evidence for not to certain

tently request present a client’s honoring 1.2, Conduct, rule com ABA Model Rules Prof. (See nontactical reasons. means, assume lawyer responsibility ment should questions [“In issues, the client regarding defer to technical and tactical but should legal for third persons be incurred and concern as the expense such questions attorney’s ethical Given the adversely affected.”].) might who client, range competent it is “not outside the loyalty to the duty when the defendant evidence mitigating actions to fail to attorney present Systemic Integrity, supra, (Maintaining adamantly position.” endorses at p. 140.) Tenn.L.Rev. wishes, defendant’s honoring if acted improperly Even counsel had moreover, judgment not result in reversal would impropriety asserting from estop party of invited error operates because doctrine 1032 its (People when own conduct has induced commission

an error the party’s 40, 545, 549-550, 3 P.2d 23 fn. 591 v. Perez Cal.3d (1979) [153 have been a fair trial and from denied circumstances 63]), claiming v. 54 852 (1960) own Hammond Cal.2d making (People the party’s [9 Thus who 289]). justification a defendant without Cal.Rptr.'233, a urge resulting prejudice has caused courtroom disturbance cannot P.2d (1959) for v. Linden 28-29 grounds {People mistrial [338 a v. nor can 397]; (1953) 825]), Gomez Cal.2d P.2d [258 successfully during testimony defendant who has volunteered information v. Wilkes error the admission of the volunteered statements urge {People P.2d (1955) 481]). doctrine a defendant operates, particular, estop invited-error based on acts or claiming

from ineffective assistance of counsel counsel’s requests.18 People with the defendant’s own ¡in omissions conformance counsel, 18], example, Simmons 28 Cal.2d 699 P.2d for defense own better asked against judgment, at insistence and counsel’s defendant’s had officer on whether defendant not been arrested cross-examination police robbery the one for he was then on trial and the for other than which both {People officer that defendant had been arrested for robberies. replied Simmons, Later, on another supra, 722.) police at cross-examination of p. Webb, officer, defendant insisted that the statement of an admitted partici trial, charged robbery in the who had before defendant’s pant pleaded guilty robbery. in| entirety though be read its even defendant in another implicated (I bid.) Webb was called as a defense witness “at defendant’s Finally, “contrary to the advice of his specific request,” (ibid.) insistent evasions, testimony counsel” at with inconsis p. 708), gave “replete {id. (ibid.). resulting judgment tencies and On from the appeal contradictions” conviction, an claim these acts defendant based ineffective assistance on counsel, but the contention was held to be barred the invited-error adamantly because in instance had insisted at trial doctrine each defendant very Here complained (Id. 722.) on the actions of which at appeal. p. also, that his cannot be to claim counsel was deficient permitted request for counsel’s own to defendant’s insistent acceding, against judgment, certain not be evidence presented. th observe, conclusion,

We that defendant the claim of predicates on his action in to his solely yielding ineffective assistance trial counsel’s demand, Defendant and not on antecedent act or omission counsel. contend, adequately investigate that counsel failed to example, does 18 only apply because it induced trial The dissent maintains that invited error cannot covers controlling principle “invited dispute court errors. This is about labels. Whether we call the counsel, asserting “estoppel,’’ foreclosed ineffective assistance of error’’ defendant is from in the text. as shown the authorities cited

1033 significance. him its regarding of or to advise availability this evidence the that perfor- counsel’s suggest record to nothing appellate There is in the it is the defendant’s these and in either of respects was deficient mance 412, 3d v. 23 Cal. (1979) (See Pope establish ineffectiveness. People burden 859, the 732, 2 for 1].) Accordingly, P.2d A.L.R.4th Cal.Rptr. 425 [152 trial counsel rendered that the contention given, reject reasons we his grand- demand that defendant’s by agreeing ineffective assistance the a testify penalty phase. be as defense witness mother not called to Penalty Instruction XI. Determination jury penalty

The court instructed the how to make its determination two your to determine which of the following duty terms: “It is now the in the for life without possibility death or state prison confinement penalties, heard all the shall be on the defendant. After having of parole, imposed counsel, you and and the arguments evidence heard considered having consider, account, and the factors applicable shall take into be guided in you have been circumstances which aggravating mitigating upon doubt[19] If you agree unanimously beyond structed. a reasonable circumstances, you outweigh mitigating circumstances the aggravating however, death; beyond if are not a you shall sentence of satisfied impose doubt aggravating outweigh mitigat reasonable circumstances circumstances, state you shall sentence of confinement in the ing impose for life the possibility without prison parole.” statutory

This court has determined that an instruction using case, 190.3,20 is given section such the instruction in this language and could mislead the as to manner which potentially confusing jury 512, 544, (1985) should determined. v. Brown penalty (People nom. grounds fn. 17 709 P.2d revd. on other sub Cal.Rptr. 440], [220 v. 837].) Brown 479 U.S. 538 L.Ed.2d 107 S.Ct. (1987) California One danger jury might weighing that the believe it could perform by inserting 19Thetrial court a reference to the “be modified the standard instruction yond-a-reasonable-doubt” impose We have this standard for the deter standard. declined to Heishman, 147, 189; (People supra, penalty capital proceedings mination of 45 Cal.3d 86, 135; Thompson, supra, People v. Miranda 44 Cal.3d only 1127]), have but this modification could worked to defend advantage. He otherwise. ant’s does not contend part, provides: having 20In relevant 190.3 heard and received all of the evi section “After counsel, dence, having fact arguments and after heard and considered the the trier of shall consider, guided mitigating aggravating take into and be circumstances account section, impose in this if the fact concludes referred to and shall sentence of death trier of aggravating outweigh mitigating fact that the circumstances. If the trier of circumstances aggravating the tri mitigating outweigh determines that the circumstances circumstances impose prison a term er of fact shall of confinement in state of life without a sentence parole.” possibility of in the number of factors fashion comparing in a mechanical process arbitrary assignment in or the mitigation, the number with aggravation 1222, 42 Cal.3d (1986) v. Allen (See People the factors. weights of to the jury might The is that 115].) danger 729 P.2d other Cal.Rptr. [232 to juror does not statutory require that our scheme fail to understand unless, the the weighing process, as a result of vote for the death penalty under all penalty that death is the appropriate determines juror personally Brown, at To determine 541.) v. (Ibid.; People supra, p. circumstances. the we exam to defendant’s may prejudice, the have been misled jury whether v. counsel. (People in the arguments ine the whole record and particular 836]; 749 P.2d 650-651 (1988) Cal.Rptr. Hendricks Brown, fn. 17.) supra, p.544, process the jury compared to the argument prosecutor In scale, but he cautioned placing weights determination to penalty laboratory” aggravat in because the system it was “unlike the jury that and weight not have the same circumstances did each ing mitigating and to each assign of what to jury weight told the the determination repeatedly decide which individually: to each “You juror circumstance was be made jury Thus the weight.”21 have more and which have less weight factors matter of of the as a weighing process a mistaken given impression the relevant and arbitrarily aggravating to counting assigning weights or circumstances. mitigating | if it to follow the law urged

Although prosecutor repeatedly circum outweighed mitigating circumstances aggravating determined that statements, stances, al by the repeated were offset repeated urgings those mentioned, over the discretionary control ready jurors’ regarding observed, are jurors when As this court has weighing previously process. to the individually aggra to be they weight assigned told can determine circumstances, one circumstance and can decide that vating mitigating others, they have discretion to they necessarily all understand outweighs! 843, 873 Burton penalty. (People select the appropriate Also, on one occasion 1270].) prosecutor 21 your question is in to the same effect: “The prosecutor made these other statements mind, resolve, you age you weight give If feel that to each of these factors. for to is how much case, may bring you’ll give weight. And that important that more is the most factor this you you mitigation. sympathy feel is a factor that feel to If the scale even down towards case, that, course, greatest in this will out is entitled to and is the factor the defendant weight you weigh something decide . . . .” “You decide what these others. That’s for scale, factors, you you place them on this decide give decide how to these various ag weight give way goes much those factors which this scale down.” “You decide how convictions, weight to gravation—felony of the crime—and how much the circumstances alcohol, defendant; age perhaps; the of the give mitigation—the effects of those factors weight give sympathy much it.” the defendant. You decide how determining in terms expressly function the jury’s penalty described that it is way in such a system designed “The stating: penalty, appropriate values of the reflect the community, who of the for 12 members felt better in this most punishment is an community, appropriate to decide what addition, they instructed expressly were jurors of cases.” serious determining penalty. for defendant sympathy consider could involved weighing process that the informed been thus Having properly in a determination to result and was intended discretion individual a role in could play for defendant sympathy and that penalty, appropriate by the determination, prosecu- been misled could not have jurors the this duty to jurors’ mandatory the character references to tor’s repeated the outweighed circumstances if the aggravating the death penalty impose whole, remarks, led as a have viewed the prosecutor’s Nor could mitigating. the determining appropria- responsibility to believe that jurors them- something besides rested on someone or teness of the death penalty 320, 328-329 v. 472 U.S. Mississippi (1985) Caldwell (See selves. [86 231, 238-240, 2633].) 105 S.Ct. L.Ed.2d record, misled was not jury we conclude

Having reviewed the entire determination process. prejudice regarding penalty to defendant’s “Mitigate” and Defining “Aggravate” XII. Instruction commenced, definitions of jury Shortly requested after deliberations to counsel suggested and The court “aggravating” “mitigating.” the terms “to dictionary “aggravate” that the defines jury that the be instructed severe,” worse, serious, it defines as “to “mitigate” or more make more or hostile.” become less harsh make less severe or to cause to painful; answered, contain- “That’s fine.” A written instruction Defendant’s counsel definitions, they were dictionary from which identifying these ing taken, room. jury was then sent into this instruction was preju

Defendant contends that the giving penal that the imply error because the definitions are too narrow dicial than and bad rather good turns on a balance between ty determination Brown, 541-542, 40 supra, life and death (see People between could “mitigate” he maintains that the definition 13). fn. particular, only circumstances consider as jury mitigating lead the to believe could and therefore painful” itself “less severe or which made the offense capital Lockett v. (see evidence character and mitigating background to ignore 989-990, 2954]; S.Ct. L.Ed.2d Ohio 438 U.S. (1978) 1, 6, 106 S.Ct. L.Ed.2d v. South Carolina 476 U.S. Skipper 1669]). Karis, the one raised here an similar to rejected argument

We during informed the others juror 3d 612. In that case one Cal. supra, 46 make or dictionary in the as “to was defined “mitigate” deliberations that severe, milder, (P. moderate.” less or less rigorous, painful; less become dictionary consult a jurors that it misconduct for 644. We concluded ) dictionary “While the defendant was not prejudiced: ut b jury to the may helpful not have been ‘mitigating’ particularly definition of context, no defendant offers the use of the term this understanding that the have been jury might a conclusion argument support persuasive mitigat could consider as jury He that if the had believed it suggests misled. crime, directly notwithstanding to the that did not ing pertain evidence instruction, lead them to conclude consideration of that definition would make crimes them the factors had to mitigating that to considered be( severe, ‘mild, soft, tender,’ less rigorous, painful, or ‘less less selves restricted meaning in the definition Nothing suggests [¶] moderate. defendant believes the may mitigating.” (P. have attributed to the word ) 645. commonly understood terms which are

“Aggravating” “mitigating” 1, v. 47 Cal.3d 55 (1988) for the Malone jury. (People need not be defined definitions, 525, that certain 1249].) 762 P.2d We have stated Cal.Rptr. [252 jury’s framework” for the consider “helpful while not a required, provide v. (People circumstances. aggravating mitigating ation of particular 26, 209, 1].) 753 P.2d Dyer (1988) Cal.Rptr. 45 Cal.3d 77-78 [246 aggravating found to be include a definition of an helpful Definitions “ fact, of ‘any attending condition or event the commission circumstance as enormity, injurious or adds to its conse a crime wtiich increases its or guilt ” the elements of the offense itself’ and beyond which is above and quences “ fact, as condition or event ‘any a definition of a circumstance mitigating which, in a or excuse for the offense sqch, justification as does not constitute in an circumstance may extenuating but which be considered as question, also, see (Ibid.; of the death determining penalty.’” the appropriateness 207, 55, 763 P.2d v. 47 Cal.3d 269-270 People (1988) Cal.Rptr. Adcox [253 906].) | instructed that the circumstances to jury expressly

Here the “any determination included other making be considered the penalty is not of the crime even it gravity though circumstarice which extenuates crime, charac other of the defendant’s any aspect excuse for the legal a basis for a sentence less than ter or record that the defendant offers as the defendant deter “you may and that consider sympathy death” 858, 878, fn. 10 34 Cal.3d Easley (1983) v. mining penalty.” (See People 309, counsel likewise 671 P.2d 813].) arguments Cal.Rptr [196 circumstances the determination mitigating explained proper scope

1037 body of instruc- counsel and the entire Viewing arguments of penalty. from the tions, suffered prejudice that defendant are not persuaded we challenged instruction. giving

XIII. Instruction Moral Justification 190.3, the jury was (f), of section factor the language accordance with or not the “whether determining penalty into account in

instructed to take defendant reason- circumstances which the offense was committed under for his conduct.” ably to be a moral extenuation justification believed in this because could language contends it was error to instruct Defendant as de- jury considering mitigating from precluding interpreted in the justification fendant’s sincere but unreasonable belief moral conduct. noted, jury (k) an factor instruction given expanded

As determining penalty that the considered in stating properly circumstances of the crime “any gravity other circumstance which extenuates the included even not a the crime.” This instruction though legal permits it is excuse for sincere but unrea penalty jury to consider in defendant’s mitigation 1194, v. Johnson 47 Cal.3d justification. (See People sonable belief 698]; Lucky (1988) 774 P.2d Cal.Rptr. People mental disturbance 1052] [nonextreme Guzman, factor (k)]; included under supra, duty its There is no indication the was misled [same].) regarding consider relevant evidence. mitigating

XIV. Felony Prior Convictions

At that had been phase previously the was defendant penalty stipulated felony robbery, convicted in offenses of second Oregon degree second first degree burglary, degree forgery, degree second unautho- escape, rized The of and of use of a vehicle. was informed the jury stipulation definition statutory robbery. under of second Oregon degree law was that the defendant also informed conviction resulted when escape working from a crew the fenced-in area reported missing landscape outside incarcerated, the institution which he was then and that day next incident. arrested the without contends that trial court erred in to obtain failing express

Defendant stipula- from defendant rights accepting waivers of constitutional before tion, overruling objection the trial erred in a defense and that court inadmissible for offenses they three of the convictions were were prior state. that would not as felonies this qualify 1038 Rights

Waiver of re 10 on In 857 (1974) Defendant relies Yurko Cal.3d [112 513, 519 in which court held accused must 561], P.2d this that an Cal.Rptr. advised, before the truth admitting prior-conviction allegations, be admission, v. and on People constitutional waived specific protections 157, 844, 143, 28 Cal.3d 9 (1980) Cal.Rptr. Hall footnote [167 admitting we for a 826], which similar imposed requirements stipulation of a con possession status as an element of the offense convicted-felon However, held, felon. as this has cealable a convicted court weapon Hall that is “not stipulation of Yurko and do not requirements apply necessarily admission of a or other which legal equivalent guilty plea v. 44 Cal.3d have consequences.” (People Hovey (1988) would definite penal Here, 121, 543, 776].) 567 749 evidence of the prior P.2d Cal.Rptr. [244 to the convictions was introduced as one of the circumstances relevant determination, ex- that is “not purpose comparable proving penalty Karis, as an of a (People supra, felon status element criminal offense” also, 639; Stuckey (1988) see People Cal.App.3d requirements stipulations factual inapplicable 225] [Yurko or admission]). not to plea tantamount Convictions

Out-of-state (i.e., three Oregon prior Defendant contends of his convictions degree second second and unauthorized vehicle degree robbery, burglary, 190.3, they would use) (c), were inadmissible under section factor because v. Crowson least-adjudicated-elements not under the test qualify, 169], P. law. But as felonies under California in Crowson we with the of section proper application were concerned used may defines circumstances under prior which which convictions enhance Section 668 punishment subsequent apply offenses. does felony than to the consideration of convictions for other prior purposes hand, punishment. enhancement of On other section 668 illustrates intends to restrictions on use of out-of- Legislature impose when convictions, also, 190.2, clearly.22 state that limitation expresses (See § in subd. of this an offense committed (a)(2) purpose paragraph [“For if jurisdiction another in California would be punishable which committed or first or second murder shall be deemed in the first degree as murder limitation, felony second In the absence of a reference to degree.”].) “prior 22 state, country, juris “Every any government, person who has been convicted other state, which, person have been diction of an offense for if committed within this such could any by imprisonment prison, punished punishable in a state for under laws of this state by subsequent prescribed manner and to the crime committed within this state in the law (§ 668.) prior place extent as if such had in a court of this state.” same conviction taken

1039 felony awas which any conviction prior to include is deemed convictions” v. District Barnes (See, e.g., jurisdiction. the convicting of under the laws for 500, P. 504-505 178 Cal. (1918) [disbarment Appeal 1100] Court [173 of 166 (1985) v. Davis People moral felony involving turpitude]; conviction convicted 760, [escape prisoner Cal.Rptr. 764-766 Cal.App.3d 673] [212 124, P.2d 127 (1953) Cal.App.2d v. Domenico felony]; People [263 v. Theo- felon]; People firearm convicted of concealable [possession 122] with P.2d [impeachment 29-30 Cal.App.2d dore (1953) 630] [262 100 Cal.App.2d v. Gutkowsky (1950) felony conviction]; People prior mini- to determine felony conviction P.2d of prior 639-641 95] [use 190.3, without (c), factor provides Section term of imprisonment].) mum in determining penalty consider that the trier of fact shall limitation “[t]he Under (italics added). felony conviction” prior or absence of presence objection counsel’s defense the court overruled language, properly this felonies defined as convictions for offenses Oregon defendant’s prior use of law.23 Oregon XV. Phase Evidence Guilt of cer- admission regarding improper back to his contentions

Referring evidence, Croth- testimony entire virtually the including tain guilt phase Schroff, Marshall, testimony those portions ers and as well as use, Davis, defendant defendant’s regarding postoffense weapon and Bass admitted but improperly we the evidence to have been first assumes find assump- at the On these guilt phase. conclude the error was not prejudicial tions, at the penalty error was argues prejudicial that the asserted conclud- Having reversal of the requires judgment penalty. phase ed, all that this evidence was contrary properly to defendant’s assumption, not address this contention. admitted at the we need guilt phase, guilt admitted at the that the same evidence was Assuming properly the jury have instructed defendant next contends the court should phase, We rejected in determining penalty. sua this evidence disregard sponte v. McLain the same contention that, in the absence of a 569], holding request, phase an at the duty penalty is under no such instruction give

trial court guilt to evidence received at the regard phase. 23 phase shall take into account penalty fact at the Section 190.3 states that the trier of Oregon argued that his con has not enumerated therein “if relevant.” As defendant factors case what limita penalty, are we do not decide this victions tions, irrelevant to determination other-jurisdiction relevancy felo any, requirement imposes on use of if section 190.3’s decide, ny example, would be admissi whether such convictions convictions. We do not address (c) California law. Nor do we factor if based conduct not criminal under ble under pursuant to Evi questions regarding to exclude such convictions the trial court’s discretion 352. dence Code section jury the court should have instructed next contends the Defendant the involving a defendant activity criminal unadjudicated that sua sponte 190.3, use, use, (b)) factor could be (§ of violence or threat attempted beyond a reason activity if the was only proved in aggravation considered 21, 53-55 33 Cal.3d (see (1982) v. Robertson People able [188 doub¡t 77, have been instructed jury that the should 279]), 655 P.2d Cal.Rptr. to view guilt phase, at the as it had been instructed phase, at the penalty a defendant’s oral admissions. caution evidence of with instructed it could determining in penalty the was Although jury activity consider, or absence of criminal the things, presence other among violence, use, use, the did prosecutor or threat of the involving attempted factor had been any presented. evidence to this argue relating not were the by during argument factors cited only aggravating prosecutor 190.3, felo (a)), prior factor and defendant’s (§ of the crime circumstances 190.3, in the evidence (c)). question factor As ny (§ convictions in a reasonable-doubt crimes” evidence in aggravation, offered “other as. 1036, 1121-1122 v. Rich 45 Cal.3d (1988) was not required (People struction 306, 45 Cal.3d Poggi (1988) P.2d 960]; People Cal.Rptr. [248 v. Williams 1082]; 753 P.2d Cal.Rptr. necessary that the 901]), nor was defendant’s oral ad to view with caution evidence of jury be reinstructed missions . failure prosecutor’s he was

Finally, prejudiced defendant contends evidence of defendant’s notice under section 190.324 that timely to give pretrial at the aggravation penalty to Crothers would be offered st atements noted, aggrava not offer such evidence As did phase. prosecutor tion. |

XVI. Prosecutorial Misconduct in argument statements prosecutor’s

Defendant contends that two of First, in explaining constituted misconduct. penalty phase to the 190.3, could be consid- (§ (a)) of the crime” factor that the “circumstances “. . . it’s the stated: determining prosecutor as a factor in penalty, ered of this trial—the you during guilt phase considered things same sort of body, person the manner which and circumstances condition killed, the execution of the | following of the defendant the conduct arrest, victim, even the conduct until his up the defendant’s defendant's 24 subject a de proof special circumstances which “Except for evidence in of the offense or may aggravation presented prosecution penalty, no evidence fendant to the .death given the defendant within a rea to be introduced has been unless notice of the evidence court, 190.3, (§ par.) prior to trial.” 4th period time as determined sonable

1041 that maintains Defendant added.) (Italics on the stand.” while demeanor was improperly the testifying, prosecutor while to his demeanor referring lack defendant’s consider aggravation the could arguing confess guilt. and failure to remorse and its mean or explained never amplified remark was prosecutor’s the merely may referring have been The prosecutor is unclear.

ing credibility and the lack guilt of defendant’s of the evidence strength referring Assuming prosecutor testimony. defendant’s remorse, a defend capital comment on failure to demonstrate defendant’s the inapplica than suggest if it does no more lack of remorse is proper ant’s 605, 650 47 Cal.3d (1988) v. Walker (People factor. bility mitigating have could Certainly juror no reasonable 70].) 765 P.2d Cal.Rptr. [253 treat either defend as an invitation to remark construed prosecutor’s aggra to confess as separate lack remorse or his failure ant’s apparent event, the remark was any assuming improper, In even circumstance. vating harm, object the failure to cured the and so an admonition would have (Ibid.; People claim misconduct. any an waived admonition request 468].) 34 27 Cal.3d (1980) Green is system statements: “The following next of the complains Defendant 12 of the communi it is felt better for members way such designed is an community, appropri to decide what ty, reflect the values of the who bargaining of cases. No back-room ate in this most serious punishment closed-door sessions. No quiet, between the defense and prosecution. an your community upon a voice in you want to have This effect is—if (Italics added.) community, your opportunity.” the law in the this jurors remark to consider urged Defendant contends this community, thereby improperly appealed effect of their verdict on considering particular and deflected them from jurors’ to the passions features of the offense and the offender. ized of the prosecutor’s have misconstrued the point

Defendant appears remarks, were to jurors “express seems to have been that which death” ultimate of life or community question on the conscience 776, 783, U.S. L.Ed.2d v. Illinois (Witherspoon that, a particu in a case jurors capital play S.Ct. and also 1770]), general, juror No reasonable justice system. in the criminal larly role important to follow communi jurors the remarks as urging would have construed event, objection no any judgment. rather than their own ty sentiment harm, so the issue is an admonition would have cured made and Green, 1, 34.) supra, reviewable. (People XVII. Motion Modification returned, moved to defense counsel

After death verdict was penalty the to verdicts the on the that it was ground disproportionate reduce verdict the This was with along in similar cases. motion considered rendered other 190.4, (§ of verdict subd. penalty for modification a death ¡motion automatic motions, report court a presentence on these the reviewed (e)). ruling Before had officer conducted containing of interviews the probation summaries to presen- mother. Attached the with Anderson’s widow and Anderson’s the mother and letters the court from the widow and report tence were the The petition apparently of death imposition penalty. petition requesting family Anderson’s in where members of had been circulated communities of the contained references the effect resided. The interviews and letters family. of on members Anderson’s death motion, was

The the it explaining court denied automatic modification of degree doubt defendant first beyond guilty satisfied reasonable that was true, murder, in was that the factors special that the circumstance and in stated outweighed expressly those The court aggravation mitigation.25 the killing the circumstances of testimony regarding that defendant’s not credible.26 the as disproportion-

Before on counsel’s motion to reduce verdict ruling ate, a study the remarked while had not conducted of death court that verdicts, egregious, this case was not one of the “most penalty aggravated the The court cases” or a “classic case” for death imposition penalty.27 25 jury aggravation in findings “the that the trial court stated both that circumstances ¡circumstances weight outweigh mitigation supported in are the of the evidence” outweigh aggravation in miti that “the court’s own determination is that factors in those beyond any gation reasonable doubt.” 26 at “Although provoked the defendant that the victim’s actions defendant’s testified tack, readily accept apparent accept explanation, I. I can it is that the did not that nor do defendant, may anger but possibility something victim have said or that the done is, unduly the fact and unreason the court finds that such fact—that that ably weight mitigating angered by victim’s little as a circum actions or words—is of stance. ” 27 study upon death-penalty “I have an But made exhaustive all verdicts. based not torture, have, sa knowledge dism, I that this factors as do it’s clear case does have such viciousness, violence, killings, multiple prior preplanning or extensive extreme serious way, special- typify death-penalty put often cases. To it another if we reviewed all which [¶] only objective penalty in those imposing 'murder cases the death circumstance with cases, aggravated getting egregious, cases which the most with the more serious cases were possibility pa penalty getting imprisonment without the the death other cases life role, first question my mind not a would fit in the simply there’s no that this is case that way putting category, Perhaps it is not. another still but it is one would ...[¶] mitigation, really looking aggravation there aren’t a lot of factors with at the factors in factors, looking beyond great ¡weight ways. In I think it’s clear deal of both at those authority to it lacked ground motion on the denied the proportionality then that form of review. undertake reduce the verdict as authority had contends that the court

Defendant counsel’s motion to consider declining and so erred disproportionate merits, evidence considered victim impact that the court improperly its motion, remarks that the court’s on the automatic modification ruling the modification motion in ruling reveal it an incorrect standard applied both as verdict of death was appropriate to consider whether the failing the offense and the offender. Review Trial Court Proportionality proportionality

Defendant’s confuses intercase and intracase argument intercase requested review. Defendant’s motion in the trial court review, in of the death this penalty an examination of whether imposition simi to the on other penalties imposed persons case is disproportionate constitutionally required lar offenses. Intercase review is not proportionality 29, 40-43, 37, 104 S.Ct. v. Harris 465 U.S. 51-54 L.Ed.2d (Pulley (1984) [79 v. 871]) consistently (see, e.g., People and we have declined to undertake Johnson, Adcox, 1194, 1253; v. 47 Cal.3d supra, supra, 47 Cal.3d People 207, 123, 320, 274; v. Hamilton 46 Cal.3d 158 People (1988) Cal.Rptr. [249 We intercase 1348]). require pro likewise decline to authorize Allen, review trial courts. v. 42 Cal.3d portionality (See People supra, 1222, 1285-1288 does not sentence” [equal protection require “disparate 1170, review of death subdivision (f)].) sentences under section may In of his that trial courts undertake support argument proportionali- review, ty v. 168 217 Leigh (1985) Cal.App.3d relies on People in that trial courts have Cal.Rptr. holding But the that case is [214 61]. discretion to determine intracase to determine wheth- proportionality—i.e., er the sentence of the is to the individual imposed proportionate culpability defendant, v. (see of the on others irrespective punishment imposed People Adcox, 207, 274; 34 (1983) Dillon supra, 477-482 P.2d Defendant’s motion in the trial 1]). [99 court did not seek intracase review. proportionality Victim Evidence Impact Maryland (1987)

Defendant relies on Booth v. 482 U.S. 496 in 2529], Supreme L.Ed.2d 107 S.Ct. which the United States outweigh mitigation. aggravation the factors in But neither reasonable doubt the factors mitigation aggravation put quite the case in the same kind of the factors nor the factors my penalty, perception at least in of it.” case as the classic case where we view the death the sen prohibits jury, during Court Amendment Eighth held trial, victim considering impact of a murder from tencing capital phase evidence—i.e., murder victim characteristics of the evidence personal family, victim’s immediate evidence of the emotional members family family and evidence of of the murder on members impact crime, defendant, the appropriate views regarding members’/ U.S._ also, South Gathers punishment. (See Carolina that the con 2207].) Defendant maintains L.Ed.2d S.Ct. considering the trial court auto prohibition applies stitutional when verdict, as modify phase matic a death well as to the penalty motion trial,, this case. and that the violated prohibition verdict, trial court is to modify on the motion death ruling and to a determination as to whether the “review evidence” “make jury’s and that the circumstances the findings aggravating outweigh verdicts contrary are to or the mitigating presented.” circumstances law evidence 190.4, Thus, (§ prohibition, subd. from constitutional (e).) quite apart cpurt by considering, ruling the is from on the prohibited trial statute when motion, any jury during modification evidence not to the the trial. presented 963, 278, Jennings 46 760 P.2d (People (1988) v. Cal.3d 994 Cal.Rptr. [251 ) 475].

Trial courts are to have and followed presumed understood generally 899, v. (Ross established law Court 19 Cal.3d 913 Superior (1977) [141 «133, case, 727]); the in this we having reviewed record Cal.Rptr. for conclude the has not been rebutted. the reasons presumption stating motion, judge only on the the trial referred to the evidence ruling in any way the did presented jury and not indicate his decision was the evidence con- impact influenced or the victim presentence report 963, 46 Jennings, 994-995.) Although tained. v. Cal.3d (See People supra, the presentence report, did state he had read and considered the we judge for of report solely assume considered the the sentenc- permitted purpose hei robbery on ing noncapital (i.e., the offenses of concealable possession 660, firearm a v. 45 felon). (See People (1988) convicted Babbitt Cal.3d P.2d 253].) 724-725 755 Cal.Rptr.

Standard Automatic Motion Modification in on ruling

Defendant maintains that the automatic modification motion only the is determine not whether trial required independently court circumstances circumstances but also aggravating outweigh mitigating the Ac- whether death is the under all circumstances. appropriate penalty defendant, trial indicate on the judge’s ruling remarks that cording ¡made argues motion the first Defendant further only determination.

1045 remarks that death is not the certain of the trial reflect an judge’s opinion case. defendant’s arguments in this As we appropriate penalty explain, employ incorrect premises. verdict,

First, modify the automatic a death ruling motion to trial not to make and de judge’s function is an novo independent penalty determination, but rather evidence of independently reweigh aggra whether, vating circumstances and then to determine mitigating judge’s weight evidence independent judgment, supports jury (See Allison, v. 48 supra, (conc. verdict. Cal.3d 913-916 People opn. Heishman, Kaufman, also, 200; v. J.); People supra, see 142, 193, v. People Frierson fn. Mosk,

P.2d (conc. J.) similar of 1977 opn. [construing provision 587] Second, death penalty law].) question whether circum aggravating outweigh stances mitigating separated circumstances cannot from the for, determination as we have appropriateness explained, weighing aggravating circumstances is the method which the mitigating jury Allen, determines which penalty appropriate. 42 Cal. 3d (People supra, Brown, 1276; at p. supra, p. 541.) Cal.3d at Thus the trial conclusion—i.e., judge’s stated “the circumstances in findings aggravation outweigh the circumstances are mitigation supported by the weight of the evidence”—also jury’s constitutes conclusion that the deter mination of appropriateness supported by weight of the evidence.

Finally, statements made court connection with defendant’s request for intercase this proportionality review—that case was not one of the “most egregious, cases” or a case” for aggravated “classic imposition demonstrate, the death penalty—do not may they fairly nor be understood imply, that the judge trial viewed death as an inappropriate penalty, much less that he had failed to exercise judgment independent deter- that, mine whether the of evidence weight supported penalty verdict or having exercised judgment, he determined that independent had the weight evidence did support death verdict. XVIII. Proportionality Sentence

Defendant contends that the death is as penalty disproportionate in this applied case. To the extent defendant intercase seeking is proportion review, ality we our position, adhere to noted that such review is previously, Johnson, not required. v. (People supra, 1253.) To the extent defendant contends the of death penalty is to his disproportionate individu Dillon, al culpability v. (People supra, Cal.3d 477-482), reject we contention on its merits. Defendant stranger murdered a to obtain his of valuables. body him five times and shooting stripping

possessions, Adcox, claim of 274-275.) 47 Cal.3d Defendant’s (See supra, and, as jury and the trial court wanting found both the provocation modify penal- motion to denying the trial court remarked in the automatic cal- cruelty high degree conduct exhibited “a ty, defendant’s lousness.” Law Constitutionality Penalty

XIX. Death constitutionality of the 1978 Defendant raises various to the challenges law, rejected by have been this court death all of which concedes penalty 777- Rodriguez, supra, in recent decisions. (E.g., People reconsider of these Defendant no reason to 779.) provides persuasive issues.

Disposition of a concealable firearm a possession The conviction and sentence felon is reversed. The the death judgment imposing penalty convicted affirmed in all other respects. J.,

Lucas, J., Panelli, J., J., Kennard, C. concurred. Eagleson, and Dissenting. MOSK, J., insofar judgment concur Concurring I it aside defendant’s conviction for of a concealable firearm possession sets by a felon: defendant was denied his constitutional to trial right convicted by jury, on the underlying charge. dissent, however, I

I from the in all other As shall judgment respects. show, entirety—or very should be reversed its at the least judgment should be vacated as to the convictions for first penalty. Specifically, degree in robbery murder and and the on the use of a firearm dependent findings murder, robbery, of a firearm in the and the circum special the use felony-murder-robbery, should be set aside for each of two rea stance testimony by certain one (1) erroneously sons: the trial court admitted the inference that (2) erroneously might Daniel Crothers and instructed on be drawn when a a false account of how he person gives acquired possession Those convictions and should at least be vacated stolen,property. findings 719, for Castro error. v. Castro 38 Cal.3d 301 (People (1985) Cal.Rptr. [211 696 P.2d The verdict of death because of Deere 111].) should set aside Deere (1985) error 41 Cal.3d 353 710 P.2d (People Cal.Rptr. [222 Brown v. Brown 925]) (1985) anci also because of error (People other sub nom. 440], grounds revd. on 107 S.Ct. 837]). v. Brown 479 U.S. L.Ed.2d (1987) California Finally, court proceeded the sentence should be vacated since trial erroneously in on defendant’s for modification of the application passing verdict of death.

I admissible, The trial erred subsequently court when it ruled admit- ted, certain testimony by Daniel Crothers: the summer of 1983 during occasions; Crothers six handgun saw defendant on five or he carrying why asked he carried the at him weapon; pointed gun defendant “I’ll any waste mother fucker that me.” replied, screws with Prior to in trial the limine for a that prosecutor ruling moved Crothers’s testimony was admissible. He argued substance as follows. Among issues that would material to the case whether prove People’s were intentional, killing was (2) whether defendant’s robbery, motive was and (3) defense, of an anticipation expected whether acted in self-de- fense. alleged Defendant’s act and statement described Crothers’s testi- mony kill, a tendency had to prove that he intended to that his motive was robbery, and he that did not kill in self-defense. The evidence was not barred Evidence Code section (a) (hereafter subdivision section 1101(a)), because it was not evidence character to conduct. Nor prove was it excludable under Evidence 352 (hereafter Code section 352) because substantially it was more than probative prejudicial.

Defendant the motion. opposed argued He that Crothers’s testimony was issue, irrelevant material was barred as character evidence by section 1101(a), and was substantially excludable under section more preju- dicial than probative. motion,

At a on the hearing that prosecutor represented he intended to introduce in his case-in-chief a statement defendant to Detective so, Bruce Correll killed the victim and intended to do but only evidence, self-defense. He also detailed the other than defendant’s alleged statement, act and that he had available to rebut a claim self-defense: “Well, case in during our chief the other evidence to the defense negate will be part admissions that have come in be would circumstances around—by the and the pathologist criminalist the regarding placement of wounds, the ear, three wounds in close particular behind the proximity defense, which we suggest to of an hope more execution than a self situation, Further, panick trigger pull on weapon [sic] [¶] on a five-shot trigger than the normal greater pull much greatly—was real delibera circumstantial that—again, evidence—required weapon,' tion, an firing blindly individu panic and not self-defense premeditation well-aimed, well-deliberated, essentially vic thoughtful, It al. was tim was executed.” reject admissible. It testimony expressly

The trial court ruled Crothers’s value 352. It found the of defendant's under section challenge probative ed if not impliedly, expressly, to be “considerable”: it determined the evidence motive, kill, of defendant’s and the that the of intent to the nature ¡presence case; be that People’s of self-defense would material issues absence issues; to that it was not tendency prove the evidence had a those for the It merely purposes. cumulative to other evidence available same also be “This “quite slight”: effect of the evidence to is a prejudicial found the bears act in the amount of it to very prejudice weak statement and terms of “Well, defendant on this issue of a crime.” it ruled: prior Accordingly, merely clear to me this evidence we’re about is not talking seems that that cumulative, weighed and after undue having prejudicial—the prejudice befall, weight I find to be to the of might slight, probative that which quite considerable, I find the evidence which I find to no basis exclude it 352.” under section testimony. did not prosecution

At trial court admitted Crothers’s either relating introduce statement self-defense its or in rebuttal.1 case-in-chief above, it ruled testimony

As stated the trial court erred when Crothers’s admissible and admitted that at trial. subsequently testimony may “The exclude evi- provides

Section that court its discretion substantially outweighed by if its value is probative probability dence time or (a) (b) its admission will necessitate undue consumption issues, or undue danger confusing create substantial prejudice, jury.” misleading 1 formally object testimony actually did not offered. Defendant Crothers’s when it was court, ruling binding is generally on a in limine is not on the trial which free “Since motion offered, object ruling challenged

to reconsider its at the time the evidence the failure nor 612, 634, mally (People v. Karis constitutes a waiver." fn. however, record, 1189].) par and the It is evident from the the trial court prosecution’s equivalent objec an opposition to the motion as the ties treated ^defendant’s circumstances, objection In such the failure to a formal cannot be deemed waiv tion. raise (See p. 16.) er. id. at fn.

1049 352 is in court’s discretion under section broad Although the trial case, it under involves “other challenge is narrow when evidence general only strictly crimes.” Such evidence embraces not criminal offenses defined also, it words or act and state alleged but deeds—like defendant’s appears, v. merely disposition. (See People ment—that reveal a criminal Anderson 1104, 585, 43 742 1306].) 1136 P.2d Cal.Rptr. Cal.3d [240 . . . crimes . . . be highly prejudicial. other can “[E]vidence [U]nder 352, Evidence Code section value of this evidence must probative its effect. outweigh Since ‘substantial prejudicial prejudicial [Citations.] evidence,’ in effect inherent offenses are admissible uncharged [is] [such] doubt, only if they have substantial value. If is probative there v. evidence should be excluded.” 27 (People Thompson (1980) 883], 611 in P.2d fns. omitted & italics Cal.Rptr. original.) “Probative and prejudice obviously value are not commodities subject Nonetheless, quantitative may identify measurement. we some of the guide lines which courts follow . . . performing balancing process [under relevance, section The chief elements of value are probative materiali 352]. ty necessity, Before permitting to hear evidence of other [¶] offenses the court must ascertain (a) evidence ‘tends logically, naturally and by reasonable inference’ to the issue which prove upon offered; (b) is offered an issue which upon ultimately will prove to case; material to the is not People’s (c) merely cumulative with respect other may evidence which the use to People prove same issue.” v. Schader (People (1969) Cal.2d 774-775 contrast, 841], fns. By omitted.) the chief element of is the prejudice poten tial to lead a jury to convict the defendant because of his bad character or Karis, record not on the basis of (See 774; his conduct. id. at p. supra, 46 Cal.3d at p. 638.)

“Evidence of a defendant’s statement regarding future criminal possible conduct a hypothetical situation”—even if “other it is not crimes” evi dence so properly called—“has at least as great a potential prejudice suggesting commit crime as propensity evidence of other crimes. There fore, the content of and circumstances which such statements are made must be carefully ... examined in assessing probative whether the value of Karis, the evidence outweighs that potential prejudicial effect.” (People supra, Cal.3d at p. 636.) determining whether trial court has ruling erred in on a matter discretion, must, course,

entrusted to its a reviewing court apply Karis, abuse-of-discretion standard. People v. (E.g., supra, Cal.3d at cannot, not, it does deference—but calls for 637.) That standard p. case, abused its discretion. trial court In this the abdication. require This substantial. First, testimony was effect of Crothers’s the prejudicial category to come within The evidence appears a matter of law. is so as event, relates de- because it broadly construed. “other crimes” in a criminal conduct future regarding possible statement alleged fendant’s as situation, for prejudice least as great potential it has at hypothetical effect called. The prejudicial so properly of “other crimes” evidence¡ is proved fact. The point as a matter of substantial testimony is also Crothers, act, by the at gun pointing alleged nature of defendant’s statement, fucker that any mother “I’ll waste his alleged substance of view. of the opposite that the trial court was me.” I recognize screws with above, unsound. a view is plainly such But as explained not substantial. Second, testimony was value of Crothers’s the probative relevance, the three issues on only one of evidence tends to prove As to viz, killed the victim that defendant prosecution, it was offered which that defendant’s not tend to intentionally. prove But does and did so did not act that defendant does it tend to robbery.2 prove Nor motive course, Self-defense, of intent presence negated self-defense. Rather, objective of the various by the absence kill. it is precluded to include, for exam- killing—which justify circumstances that subjective and the need peril in the apparent and reasonable belief an honest ple, 155]; P.2d Cal.App.2d defense Sonier (People nor his Code, act alleged Neither defendant’s 198). Pen. subd. see §§ or absence of such on the any bearing presence had statement alleged circumstances.

Next, indeed offered on issues testimony was it is true that Crothers’s wit, case—to material to the ultimately prosecution’s to be prove would motive, kill, explained But as and lack of self-defense. robbery intent to above, first. tendency only to prove had a the evidence merely in fact cumula- testimony was necessity, to Crothers’s

Finally; as to the prosecution prove evidence available tive with to other respect in- victim and defendant killed the On whether same issues. the question testimony prove tends to that defendant’s majority suggest that Crothers’s appear 2The his desires anyone him or thwarted may have simply kill who interfered with motive been “to or, words, had where he slight provocation under circumstances plans to kill on in other ante, 1015.) not the evidence does (Maj. opn., p. Whether or right no of self-defense.” consequence prosecutor tendency point here. prove such a seems without fact have a purpose. the evidence for that did not offer so, tended to do also had defendant’s statement Detective prosecution so, victim only Correll that killed the and intended to do but in self- Next, on defense. motive question robbery—on whether defendant’s testimony which the not relevant—the had prosecution was also evidence that defendant had taken the belongings apparently the victim’s cleaned crime scene items could linked to the Lastly, of that have him incident.3 question the whether defendant acted self-defense—on the testi- which had, mony was not in the prosecution relevant—the also own prosecutor’s words, wounds, “the of the three in close placement particular wounds behind the ear” and the fact that on the proximity trigger “the pull weapon greatly—was much than normal on a five-shot greater trigger pull I weapon.” recognize the trial that court determined that the evidence was merely “not cumulative” to other evidence. In view of the that foregoing, determination is plainly unsound.4 course,

I now turn from the fact of error its Of an consequences. erroneous evidentiary ruling such if as that here requires subject reversal Anderson, ed the defendant to prejudice. (See, e.g., People supra, Cal.3d at p. 1137.) Generally, is is prejudice not but determined presumed after an examination of the entire cause. v. Watson (People 818, 836 P.2d Prejudice found “it 243].) reasonably when is probable that a result more favorable to the would have been reached appealing party in the absence the error” {ibid.)—or differently, stated it is when reason ably probable the error marginally contributed “A outcome. review our cases reveals that ‘reasonable here . . . used probability’ mean[s] . . . ‘a undermine simply probability sufficient to confidence in the out come’ v. Bell (1989) 49 (People [citation].” Mosk, mind, P.2d (dis. opn. J.).) my To such probability 129] exists here. above,

As explained carried testimony within itself potential sub- stantial prejudicial it presented effect: a man defendant as who was bad and unworthy as such of belief. That effect was magnified prosecutor’s comments in In summation. his he opening argument defendant’s quoted 3 Contrary majority’s suggestion, to the apparent question on the whether defendant’s mo prevent interfering tive the victim thwarting plans—an from with him or his desires or prosecutor (see not ante)—the issue raised fn. prosecution also had evidence includ ear, ing firing of three bullets into head left support victim’s behind the which could life, an inference prevent interfering defendant wanted to the victim from with him and the taking scene, belongings cleaning victim’s and the apparent the crime which could support an prevent interfering inference defendant wanted the victim from with him after death. ” majority testimony ‘merely 4The (Maj. also consider Crothers’s opn., “not cumulative.’ ante, above, p. 1016.) at they For reasons stated too are incorrect. from “We also know a statement virtually statement verbatim:

alleged the com self-styled he of a He made gangster. is somewhat Crothers gun he you pointed have that And Crothers—‘Why gun?’ ment do to' mine, said, words, I ‘Because are his and he ‘Because’—these Crothers bad, likes to think with me.’ He’s any mother fucker that screws will waste man, have here.” That’s the kind defendant we that he’s bad tough. “A virtually verbatim: the statement again quoted closing argument said, us, ‘Why you carry gun,’ witness do through man who told mother fucker that screws I will waste his words: ‘Because again words, bad, meaning bad Lang colloquial Mr. thinks he’s with me.’ [¶] hombre, I’ll Nobody’s to mess with me. going tough gangster. little tough, waste them.” eyewitness only crucial. He was the and credibility

Defendant’s was testify question for the defense. The any most witness of kind important sure, To be defendant’s credibility must be deemed to have been close. of veracity and his character for testimony against challenge was not proof he in itself But tale told was believable and sterling. was not in of is confirmed question a believable manner. The closeness presented jury although straightforward, the fact that the case was and simple days, of and days parts requested two full and two other deliberated testimony (See its v. Woodard entirety. of defendant’s in rereading 536, 590 P.2d [remarking 391] shut, in far from and as evi- issue of this case was guilt open “The of nearly six hours conflicting evidence sharply denced they verdict.”].) before deliberations reached record, error is sufficient to undermine On this under review judgment. I Accordingly, in the outcome. would reverse confidence II made under

The erred it denied motion defendant trial court also when felony him certain to bar the from with prosecution impeaching section 3¡52 in Oregon. convictions he had suffered the defense

After the its case-in-chief but before prosecution completed statement, impeachment made its defendant moved opening preclude in the robbery degree, escape in the in for second Oregon with convictions vehicle; he conceded use of a degree, second and—impliedly—unauthorized in burglary with convictions that state for properly impeached could in degree forgery degree. prosecutor opposed in the second the first I, of the Califor- (f), the motion. He relied on article section subdivision which (hereafter 28(f)), adopted part nia Constitution section Primary 8 at the June 1982 Election and declares relevant Proposition “Any felony any any pro- conviction of criminal prior person part or shall be used without limi- ceeding, juvenile, subsequently whether adult any or enhancement of sentence in purposes impeachment tation criminal proceeding.”

The trial court denied defendant’s motion: “There’s some room for— there’s a lot of room for as to 28f discussion whether section that was added any felony to the California Constitution that provides prior conviction criminal any any or person proceeding juvenile whether adult shall subse be used limitation for of an quently without purposes impeachment enhancement criminal There’s some proceeding. ambiguity possi [¶] that, I ble in but think the plain is that a can meaning prior conviction be used without limit for . . . . purposes impeachment There was [¶] lawyers room for reasonable but me judges disagree, it’s clear.” stand, admitted Taking witness the five convictions referred to above. Castro,

In v. supra, 38 Cal.3d this 28 court held that “section was not abrogate intended to the traditional and inherent of trial power to court control the admission of evidence the exercise of discretion matter—as, indeed, exclude marginally relevant but is prejudicial provided by Evidence Code (Id. section 352.” at A of p. 306.) plurality the Castro court concluded that under subdivision (f) constitutional provision the trial may court admit felony evidence of a conviction to impeach credibility of a if only witness if the least adjudicated elements of the underlying felony i.e., necessarily involve moral turpitude, the readiness to do evil. (Id. at pp. 313-317.) The plurality that of a emphasized admission felony conviction is not as inadmissible a matter of law under is foregoing rule always subject to the trial court’s discretion under section (Id. 352. 306.) at p.

In v. People Collins (1986) Cal.3d 378 173], this court prescribed “the procedure followed courts appellate in Castro applying to cases tried before the date of that decision still pending before them. The issue is in presented each case in (1) which 9, 1982, defendant was with committed charged a crime or on after June date on which Proposition effective,] became (2) the prosecution [the proposed impeach the defendant with of one or proof prior felony more testified, convictions if he (3) the defendant for an moved order excluding those convictions the exercise of the trial court’s under discretion section 352, and (4) the court denied the motion without its exercising discretion 28(f).” bound to admit the convictions section

because it deemed itself omitted.) at fns. (Id. p. should first decide whether convictions are prior

“The court appellate inadmissible (2) in the trial court’s discretion or admissible excludable Collins, A 389.) prior Cal.3d at (People supra, p. as a matter law.” here, when, “it does falls as not category pertinent into the latter conviction instances, “In most necessarily turpitude.” (Ibid.) according involve moral Castro hold the trial court committed error ly, the court will appellate or exclude the challenged prior to exercise its discretion to admit failing inadmissible admitting convictions that are [citation], convictions and/or (Id. 390.) matter of at p. as a law [citation].” When, here, the trial adverse rul- the defendant testified after court’s “the should make a determination appellate preliminary court ing, convictions, the outcome of together, effect of the taken probable prior Collins, “it 42 Cal.3d at If it concludes (People supra, p. 390.) the trial.” reasonably that a result favorable to defendant would not probable more error—i.e., Castro that the admis- have been reached in the absence did the outcome—it should hold prior change sion of convictions not other turns on the error harmless. all cases the question prejudice whether,the trial would have admitted or excluded the convic- prior court cases, however, the appellate tions over which it had discretion. In such on how court have exercised its court should the trial would speculate Rather, purpose it should reverse the the limited judgment discretion. trial directions exercise its discre- remanding the cause to the court with & (Id. original.) tion in the matter.” fn. omitted italics p. to It that here I turn now the case at bar. is evident Castro applies The that the Collins must crimes with which defend- procedure followed. 9, 1982; pro- ant committed after June charged prosecution were testified; if felony him with convictions posed impeach moved trial to bar the exercise of its discretion impeachment court exercising the motion its 352; under section and the court denied without the convictions because it deemed itself bound admit expressly discretion 28(f). section here, I that court com Following the Collins believe the trial procedure motion to mitted Castro it denied defendant’s section 352 bar error when robbery degree, in the second escape with his convictions for impeachment use of a in the second and unauthorized vehicle. degree, First, by impeach- the trial court allowed introduction for ruling as it did and unauthorized degree ment of for second escape the convictions use that inadmissible as matter law. of a vehicle—convictions were elements adjudicated degree The least the second consist escape custody. the unauthorized from These elements do not departure simply i.e., Rather, involve to do necessarily moral readiness evil. turpitude, authority. most In States they necessarily involve is for United disrespect (E.D.Pa. Zimmerman stated 1947) regard the court with F.Supp. a similar offense a similar “I that of an say under law: cannot the action baseness, prisoner escaping depravity involves element vileness or which has been regarded necessarily inherent in the of moral concept action, contrary On the such turpitude. wrong while mistaken and under circumstances, undoubtedly these spring does from basic desire of the liberty human for being of action and freedom from (Id. restraint.” 538.)5 p. adjudicated least elements of unauthorized of a use vehicle consist of

merely the use of a unauthorized vehicle. These elements do certainly Rather, necessarily involve turpitude. necessarily moral in- they most volve is the of a culpability “joyrider.”

Second, by as did the ruling trial court failed to exercise its discretion to allow or bar introduction for impeachment robbery of the conviction degree—which second is plainly a crime of moral hence turpitude and above, not inadmissible as a matter of law. As shown the failure is manifest on the face of the record. case,

In this the Castro error was been prejudicial—and would have so even if the prior robbery conviction was the sole offense. That is impeaching say, an appellate court cannot “it is properly reasonably conclude proba- ble that a result more favorable to the defendant would not been have error—i.e., reached in of the absence Castro admission 5 concluding adjudicated that the felony escape least elements of the in the de second gree Oregon necessarily violation of Revised Statutes section 162.155 turpi involve moral tude, majority force, “Escape the Oregon reason: without as defined both and California law, necessarily stealth, deceit, trust, involves form some of or potential breach of and the for ante, always present violence escaped is an recaptured.” (Maj. opn., p. 1010.) when is felon at immaterial, however, escape It is necessarily what without force as defined law California Oregon above, violating involves: defendant was of Oregon convicted law. And as shown law “necessarily disrespect authority. involves” at most consequence for It is of no here whether potential always “the present escaped recaptured.” violence is an when felon is Such a reus, “potential” part is not a (actual constructive) of actus is the nor awareness of this “potential” aspect an of the mens rea. Collins, . . . .” the change (People convictions did outcome

prior in original.) italics p. supra, robbery and the charges The murder and degree determination the first a crucial single question: related on the resolution of allegations depended form to steal victim’s before possessions, When defendant the intent did was, course, robbery. as to (See This critical or after? issue killing 1, P.2d People Green 468] arise until the force “if the larcenous does not after [holding purpose that victim, is of act and ‘joint operation has been there no against used also necessary robbery”].) “timing” intent’ to constitute The issue was (to theory of guilt critical The evidence on a degree supported first murder. willful, deliberate, mur- felony-murder-robbery premeditated and but not much in in summa- argument der. The conceded as his opening prosecutor “Now, murder in first degree tion: in terms of the as straight opposed felony Quite frankly .... submit that the evidence murder murder here is doesn’t kind of murder. The we have particular support felony during a was committed the commission murder because the murder . . . .” was critical robbery Lastly, “timing” of the it follows that the issue murder, use of a as to the the use of a firearm the allegations circumstance. robbery, felony-murder-robbery special firearm in the Further, when single the resolution of the crucial did question turn, credi- form the to steal on a determination of his intent depended, bility “timing” on the bearing a witness. circumstantial evidence was, however, There issue was at best and of little substance. ambiguous But direct evidence relevant to the issue. that evidence was defendant’s alone, testimony included statement testimony and defendant’s which after only killing. he formed the intent to steal I, Finally, as noted above Part the determination of defend (see ante), sure, have been To be credibility ant’s as a witness must be deemed to close. the intent to steal—as on other matters— testimony on when formed told, the “tim especially was not immune from attack. But the tale he issue, in a manner. presented believable in itself and was believable ing” fact that credibility The closeness of the is confirmed question two although straightforward, the case was deliberated simple days days, full of two other of defend rereading and parts requested testimony entirety. ant’s its circumstances, conviction robbery

In such with a prior impeachment to be effect. “To allow evidence easily significant cannot be held without may crime for which a defendant on trial prior very conviction 1057 here, a . . . as jury. [W]here, in its devastating potential impact to the there is a sub sufficiently conviction is similar crime prior charged, be a jury’s stantial risk that all evidence will overwhelmed exculpatory tendency fixation on the human to draw conclusion which impermissi before, ble in he must it again.” (United law: because did it have done accord, 488; States v. Cir. Bagley 1985) People Beagle 772 F.2d (9th 453 1].) I jury that the trial court instructed the that it could consider recognize only credibility. convictions But “To tell a prior ignore defendant’s or she determining convictions whether he committed prior the offense tried is beings to ask human to act with measure of being cases, dispassion beyond and exactitude well mortal such capacities. becomes unrealistic to effective of particularly execution the ‘mental expect instructions, gymnastic’ required limiting and ‘the naive [citation], as sumption that prejudicial effects can overcome instructions to jury’ fiction,’ clearly becomes more than ever .... ‘unmitigated [citation] difficult, prior jury, evidence of crimes reaches the if ‘it is most [O]nce impossible, to assume continued integrity innocence. presumption ” A of ink drop cannot be a glass (United removed from of milk.’ States v. Daniels (D.C. 1985) Cir. 1118.) F.2d above, For the stated reasons I vacate would as to the judgment convictions for degree first robbery murder and and as findings to the on the murder, use of a firearm in the use a firearm in robbery, and the special circumstance felony-murder-robbery, and would remand the cause to the trial court with directions exercise its discretion on the Collins, admissibility of the convictions in (See question. supra, Cal.3d at p.391.)

Ill The trial court committed yet another error when it instructed the jurors, in accordance awith modified of a version standard instruction (CALJIC No. 2.15 (4th 1979)), ed. “The follows: mere fact that a person was in conscious possession recently property stolen is not enough justify his conviction of the crime charged the information [i.e., rob [Count of] is, however, bery], It to be circumstance considered in connection with other evidence. To warrant a finding guilty, there be proof must of other conduct or circumstances tending of themselves to establish guilt, [¶] [In this may connection you consider the defendant’s false or contradictory statements, if any, any other he may statements have made with refer ence to the If a property. person a false gives account of how he acquired possession of stolen property may this is a circumstance that tend to show rob- “[i.e., material original except and bracketed brackets

guilt.]” (All bery].”)6 erroneous, ascertain at an instruction is we

“In whether deciding meaning We next determine what the relevant law provides. threshold what is, a reason how would question in this Here the conveys regard. the charge Finally, . . . we determine whether the instruction. juror able understand understood, instruction, correctly.” (People states the law applicable so 218].) v. Warren thus, it is found to be is reviewed the instruction question When a false may gives infer that a who juror person The law is that a erroneous. may improper- have it acquired he stolen acquired property of how account, however, instruction, aby have been understood reasonable ly. The would a false account of gave he infer that a who might person to mean that juror robbery have it might acquired through he stolen acquired property how rather than theft. the instruction and how

Certainly, is how the understood prosecutor this During argument to understand it. his urged jurors opening he summation, that possession he “You’ll be an instruction given said: of the defendant’s proof defendant in and of itself is not stolen property acquired proper as to how deceptive explanation but evasive or guilt, How you guilt. a consciousness of ty may showing be considered [¶] Well, . . he made . what you if recall the statements that does that apply. it, home, the credit the motor how he use of got he was with doing Yes, I these credit cards.’ All these cards: ‘Lhave taken care of it. can use [¶] lies, guilt a consciousness in the clearly they were but show explanations through as to how he Not acquired property. mind this defendant inadvertence, to take afterthought, not an but he intended through Not panic. did, in the—the victim in and killed the property fact added.) (Italics the process.” Therefore, instruction, by a reason as it would have been understood did not correctly: simply permit able does not state the law juror, from false the reasonable inference of jurors improper acquisition to draw account,: unreasonable inference actually but them to draw an permitted rather than robbery was effected acquisition through that the improper theft. jury room for delib quote,the appears on the written form sent into the 6I instruction as it orally as it was deliv transcript, in the and not the instruction erations and recorded clerk’s versions, however, virtually transcript. are identical reporter’s in the ered and recorded way here. and differ in no relevant 7 erroneous, majority appear first to reason concluding that the instruction was jurors permit draw an inference that defendant was that the instruction did not in fact above, de- The reversal. As the issue whether requires explained error robbery only or theft was critical not to the grand fendant committed first robbery: conviction for it was crucial as to the conviction for well theory felony murder—clearly only theory murder under a degree on the use of a sufficiently findings the evidence—and the supported murder, in in and the robbery, firearm the the use of firearm the special above, felony-murder-robbery. circumstance of As also the issue explained was as close as it critical: the circumstantial evidence did not point was direction; in unmistakably either the direct evidence—defendant’s testimo- instruction, immune ny—did, but not from attack. erroneous summation, which was in emphasized prosecutor his permitted jurors to that the speculate improper acquisition belongings victim’s Thus, robbery was effected rather through than theft. the instruction skewed the resolution of this critical issue defendant’s and prejudice hence is sufficient to undermine I confidence the outcome. Accordingly, would reverse the judgment.

IV Defense counsel’s failure to certain present available evidence mitiga- tion at the penalty resulted in a verdict of death that phase satisfy does not heightened reliability degree by the required Eighth Amendment to I, the United States Constitution and article section of the California Constitution.

At the penalty phase, the case consisted of prosecution’s a stipulation covering felony defendant’s convictions. The prior defense’s case consisted of the testimony of a correctional officer. The officer testified that defendant had not presented any disciplinary problems custody while before and during trial. After deliberating about three full over days of four period days, returned a verdict of death.

At the sentencing hearing, defense counsel stated record that he had intended to call defendant’s elderly as a witness at the grandmother penalty phase “history.” defendant’s present “history” That evi would dently substantially have been as follows. Defendant was born in 1960. years divorced; Three later his parents his mother did not seem interested in guilty robbery grand acquired posses- rather than theft from his false accounts of how he above, belongings. sion of the victim’s But as shown such a conclusion is unsound. The ma- jority appear permit jurors then to reason that even if it did to draw that inference it was objectionable regard in that supports “Defendant’s conduct . . . an inference that he offense, greater committed the crime stronger because the more serious the the motive for ante, (Maj. opn., pp. 1024-1025.) disagree. concealment of the true facts.” I Defendant’s certainly speculation may robbery conduct grand allows that he have committed rather than my permit actually theft. But to mind it does not a reasonable inference that he did so.

him, years he following his father’s home. Over the and he was taken into defendant was mainly his father. His father remarried when resided with twelve, old, he remarried when years again divorced when he was five thirteen, divorced four times. Defendant w his mother remarried and s a school, child, bashful, and of a with other children quiet, good a sensitive solitary; neglected but he felt lonely apparently nonviolent disposition, by his father. especially rejected parents stepparents—and years his father these mainly during apparently he resided with Although of troubles in his father’s lived on and off with his because grandmother trouble—usually by years stealing home. his into teenage began get In even.” At 15 he left his father’s home “get items from his father order years In his he became involved teenage to fend for himself. late began criminal offenses. activity—which culminated the present more serious counsel, however, He grandmother. did not call defendant’s Defense history Lang’s “I a deal more about Mr. great wanted to explained: present life, think . . her here bring I it is . So I wanted to important. because [¶] think, sorrow, that—and I to his in terms of the great to have the hear result, not want Lang but I think to his credit as a human did being—Ken elderly that kind of of grandmother through experience put testify. trauma of to come here and And I think of part emotional having his mind set even to the taint of associated with this go through being of the serious offense of which he stood convicted.” process whole 13, (1985) 925], v. Deere 41 Cal.3d 353 [222 of death on the that defense counsel’s judgment ground this court reversed failure in accord with his cli- mitigation—although evidence present constitutionally ent’s wishes—rendered the determination penalty unreliable. that counsel’s failure to present court determined

“First,, [Deere] evidence in introduced error into the mitigation penalty proceeding.

“ to bar ‘To a defendant convicted of a crime permit potentially capital . at the . . introducing mitigating penalty phase his counsel from evidence would . . . this court from its constitutional statu- prevent discharging of death record of tory judgment upon complete to review duty case, appropriateness because a of the evidence significant portion missing. would be penalty “ ‘This of the record another concern of implicates paramount ¡deficiency “in . . . the has a interest in strong reducing the state: cases state capital risk of . . . Since 1976 the United States judgments.” Supreme mistaken difference between Court has that the repeatedly recognized qualitative higher degree a correspondingly demands other penalties and all death punishment. appropriate death is the in the determination reliability L.Ed.2d 428 U.S. (1976) Carolina North (Woodson has insisted that court high And since 1978 (plur. opn.).) S.Ct. 2978] the defendant’s any aspect to consider must be permitted the sentencer v. Ohio (Lockett factor. mitigating as an independently and record character 973, 989-990, S.Ct. L.Ed.2d 604-605 2954] 438 U.S. J.).) C. Burger, (plur. opn.

“ mitigating the introduction to prevent capital ‘To allow crucial of fact potentially from the trier on his behalf withholds evidence than if the defendant decision no less penalty on the bearing information judicial statute or evidence introducing from such himself prevented determination in a reliable penalty the state’s interest In either case ruling. 363-364.) (41 pp. is defeated.’ . . .

“Next, as ‘the record long that so court determined [Deere] called have been might that at least someone “the possibility demonstrates (41 his life be spared”’” and to testify urge on defendant’s behalf 367, into the penalty in the error introduced original), at italics p. Cal. 3d in cannot mitigation evidence by counsel’s failure to present proceeding “ in a capital ‘When the sentencer harmless. The court explained: deemed in of the available evidence part of all or a substantial case is deprived to require proof.” for is too obvious “the mitigation, potential prejudice own, Indeed, its there is no of a verdict of substituting “short [Citation.] mitigating effect unpresented a court to determine what way reviewing for We have have on the sentencer’s decision.” might evidence had [Citation.] in such circumstances consti that a of death judgment imposed no doubt VI, Const., only did 13): art. justice (Cal. a miscarriage tutes § trial at trial—in effect he had no penalty not have a fair penalty 1158- v. Williams 368.)” all.’ Cal.3d at (41 p. (People Mosk, J.).) P.2d & dis. (conc. opn. 1159 [245 901] the record it is plain to the case at bar. On the face of I turn now counsel declined to present at defendant’s request Deere error occurred: otherwise that counsel would evidence in mitigation—evidence available presented. have As in here cannot be deemed harmless. is also that the error plain

It Deere, that at least someone . . . demonstrates ‘the possibility “the record that his urge behalf and to testify have been called to on defendant’s might ” Indeed, the record original.) at italics (41 p. life be spared.’ would certainty grandmother the virtual that defendant’s demonstrates “ Deere, way reviewing . for a ‘. . there is no have been called. As also might evidence have mitigating determine what effect unpresented court to “ ” since and no need for it to do so ‘the decision[,]’ the sentencer’s had on ” (Id. 368.) But require proof.’ p. too obvious potential prejudice that defend- conjecture case I think a court could make reasonable this on which pen- would have the scales testimony tipped ant’s grandmother’s evidence, no virtually in his With weighed mitigating favor. alty above, been as noted deliber- must have close to equipoise: balance days grand- death. With defendant’s three full before it chose ated about I would toward life. testimony, verged believe the balance have mother’s constitutionally I would the verdict of death as Accordingly, set aside ¡ judgment (See and would reverse the to penalty. unreliable Deere, 368.)8 Cal.3d at supra, p.

V Brown, supra, trial court also committed error under People mandatory- in accordance with the jurors Cal. 3d instructing Code sec (hereafter of Penal section 190.3 penalty-determination language version of tion as that a modified 190.3) language incorporated “If (4th you agree 8.84.2 ed. (CALJIC 1979)): standard instruction No. beyond doubt that the circum unanimously aggravating a reasonable circumstances, you shall sentence outweigh mitigating impose stances 190.3, (Italics . . .” The final of section added.) paragraph death based, . trier . which the instruction was declares: “the foregoing of fact. if shall a sentence death the trier fact concludes that the impose (Italics the outweigh circumstances circumstances.” aggravating mitigating ) added. final 190.3 In Brown this court construed the of section as paragraph Eighth in order to avoid the serious Amendment that questions follows 8 error, rely majority “the finding prejudicial appear proposition to that re no the on the by Eighth penalty liability the in death cases ‘is attained when’ ”—as required Amendment here, majority’s discharged proof at prosecution in the view—“ ‘the has its burden of the guidelines guilt phases pursuant evidence of a con penalty to the rules of and within the statute, proper penalty verdict has been returned under instruc stitutional death the death duly mitigating procedures, penalty and the has considered the relevant evi tions and trier of ” ante, 1030, dence, any, p. quot present.’ (Maj. opn., to at if which the defendant has chosen 1194, 669, (1989) 698].) my ing Cal.Rptr. v. 48 1228 P.2d To People Bloom Cal.3d 774 [259 mind, Reliability only assured the record on which proposition is unsound. can be when i.e., any “complete,” “significant portion not lack of the is based is when it does verdict “ reasonably ‘. appropriateness penalty” that concludes . . of the of the counsel evidence ” Deere, supra, compelling mitigation.’ (People 41 Cal.3d at most case in makes the 364, 363, 3.) pp. “complete” It is obvious record here is not in that sense. Certain fn. that the by ly, testimony reasonably judged officer could not have been counsel of correctional actually by compelling mitigation—nor judged was it him to to the most case in have make Indeed, testimony virtually mitigation at all. made no case such an effect. officer’s fix to decline to discretion deprived fact were if the trier of would arise context, metaphor is a ‘weighing’ the word at death. “In this the penalty The word description. of precise nature is by incapable which process calls for a not one which certainly but balancing process, a mental connotes ‘scale,’ imaginary factors on each side counting mere mechanical free to is juror them. Each to ‘weights’ arbitrary assignment each to appropriate value deems moral or sympathetic assign whatever By directing .... to consider factors he is permitted all of the various finds that aggravating if it death penalty jury impose that the ‘shall’ be understood should not the statute ‘outweigh’ mitigating, factors unless, upon completion penalty to vote for the death any juror require penalty is the appropriate he decides that death ‘weighing’ process, factors, the various the jury, weighing Thus under all circumstances. is penalty appropriate relevant evidence which under the determines simply 541, omitted.) fn. Cal.3d at (40 p. in the case.” particular ... make a moral assess- “require[d] the trier of fact is simply, Stated and the the individual defendant the basis of the character of ment on thereby appropriate decide which penalty of the crime and circumstances 808, 856 (1989) v. Bonin (People in the case.” particular [254 words, 298, is not simply In other “The 460].) 765 P.2d Cal.Rptr. factors and outweigh mitigating factors determine whether aggravating determination, but rather it of that then the death result impose penalty factors, determine, whether under after consideration of the relevant is to for the defendant all circumstances ‘death is the appropriate penalty’ Myers Cal.Rptr. it.” Cal.3d (People before Grodin, J.).)9 (lead 729 P.2d opn. 698] language (1988) 44 9There is v. Hendricks may fact’s 836], perhaps proposition that the trier of be read to stand for may to the Consti penalty death be limited without offense discretion to decline to fix the aggravating circum requiring the trier choose death if it determines that tution—as however, outweigh mitigating reading, should be avoided as stances circumstances. Such a constitutionally erroneous. 1756], McCleskey the United Kemp (1987) U.S. 279 L.Ed.2d 107 S.Ct. carefully that must Supreme “In to the defined standards States Court stated that contrast sentence, limits a State’s impose sentencer’s the death the Constitution narrow a discretion might ability cause it to to narrow a sentencer’s discretion to consider relevant evidence precluded . . . from con impose decline to the death sentence. sentencer [cannot] ‘[T]he any sidering, mitigating factor, aspect character or record and of the as a of a defendant’s proffers a basis a sentence less than of the offense that the defendant as circumstances ” (Id. 286], p. p. original.) in death.’ at L.Ed.2d at italics words, general McCleskey in ca- expressly declared that—at least the With these the court denying discretion to consid- pital prohibits a state from the sentencer case—the Constitution might impliedly declared that the support penalty er a other than death. It also evidence that actually denying such a prohibits a the sentencer discretion to choose Constitution state from

penalty. the final constitutionality in this court the of Although upheld Brown 190.3, of that when delivered recognized section nevertheless paragraph lan mandatory-penalty-determination in an instruction that provision’s discretion, to sentencing as to the of their might jurors scope mislead guage (40 in Amendment the defendant’s violation of Eighth principles. prejudice, reasonably understand p. 17.) Specifically, juror might Cal. 3d at fn. a as of finding the a language penalty “simply to define determination at “a mere of factors on each side (id. p. 540) counting facts” mechanical ” words, he be misled imaginary (id. p. 541). might the ‘scale’ In other of A juror the the is determined. process penalty as to nature of which i him to vote for reasonably require also understand the might language in outweighs death if he finds that the evidence the evidence aggravation if he determines is not the mitigation—even penalty that death appropriate 540-544.) say, under all the id. at That is to (See circumstances. pp. be misled to the character of the ultimate to be resolved might question process determining penalty. the case, In this on the determination of penalty the trial court’s instruction jurors scope sentencing indeed have misled as to the their might discretion, Eighth in violation of Amendment prejudice, defendant’s following. of the record discloses the principles. Review with, To begin jurors the trial court instructed the accordance with final of the of section mandatory-penalty-determination language paragraph declares, statutory 190.3 without material modification. The “the provision . . if trier of fact . shall a sentence of death the trier of fact con impose cludes that the circumstances circum aggravating outweigh mitigating states, you unanimously “If added.) agree stances.” The instruction (Italics doubt out beyond aggravating reasonable that the circumstances circumstances, shall sentence of death weigh 'mitigating you impose . . .” (Italics . in the instruction added.) presence requirement doubt, course, does not beyond of unanimous reasonable agreement objectionable neutralize ameliorate the mandatory-penalty-determina ¡or be merely tion It establishes the at which the “mandate” language. point comes operative.10

Moreover, instruction, the prosecutor trial court’s anticipation mandatory- in his summation emphasized, misleadingly explicated, time In words language again. quite that do penalty-determination fill 10 pages reporter’s transcript, prosecutor quoted, para to, no fewer than 10 times. objectionable language or alluded phrased, 1 0Contrary suggestion, mandatory-penalty-determination language majority’s to the jurors sympathy could not neutralized or an instruction that the consider ameliorated the plainly defendant: such an has no effect whatever on “mandate.” instruction have you “So stated: argument, prosecutor the beginning Near the law, of what general have a idea you to and now an oath follow the taken are, may if it may disagree—even if it duties even your that law is what You have said might hold. you a that might belief against personal rub but the death penalty,’ rare for me to very impose ‘it would be beginning the aggravation the in you the law. that you said would follow you factors If find law, and to the to oath mitigation, uphold your in outweigh follow factors (Italics added.) must death.” you impose said, in to the “As we The soon returned prosecutor point: if factors a be outweigh, means the must

aggravation penalty imposed that death aggrava- doubt the in you beyond law. reasonable matter factors If find (Italics must be as a matter law.” outweigh, tion the death penalty imposed added.) “Now, to you may say yet

The returned to the point again: prosecutor and the Why is can’t awfully judges ‘This an difficult choice. yourself, I feel make this hard for me make this choice. don’t lawyers choice? It’s to Yes, my it’s that I duty comfortable with it. I know these find factors and, I mitigation, therefore, says law aggravation outweigh those far But, difficult you very ‘That’s for me penalty say, must death.’ impose to do.’

“Well, your your The question duty it’s of what is and what oath is. that it for 12 system designed way in such a is felt better members to is an community, community, who reflect the values of this decide what . . . in this most of cases. Puts to the punishment you serious appropriate ability to you your test. Puts the test of to follow the law and follow what you your duty.” (Italics added.) to be perceive case, “In you

Yet returned if again prosecutor point: this remember, you to follow Perhaps, beginning took an oath the law. oath, you you you when took that felt not even come to this might point, ‘Yes, easy I do. I oath. I say, and so it was will follow that will follow you We all—. . . all took you’re put law.’ But now find that to the test. we oaths—lawyers took as officers took oaths. oaths of the court. Witnesses judge. juror, took an to be a took oaths to and we judge oath You law, you duty all have to follow oath. And the is to follow whether with it or agree not. those factors in weight aggravation—

“You decide how much give convictions, weight much felony the circumstances of the crime—and how alcohol, the age those effects of give mitigation—the perhaps; factors defendant; You how much weight for the defendant. decide sympathy of give to it. your let about the death Try feelings

“Do not to objectively. personal it intrude, to that. you’re as a matter law not do permitted because of penalty to be about this. You objective You’re to do that. You have permitted not each of the factors and decide where weight assess and evaluate and to give the scale goes. says

“If the side of the law there can goes aggravation, the scale down on that is only you accept, be difficult as that be to might one As penalty. if decision, beyond a reasonable doubt aggravation that the in your factors choice, outweigh says you only the law have one mitigation, the factors If, hand, they mitigation death on the other become out- penalty. equal then, course, you But have life without of weighs, possibility parole. you set own about the death and your penalty, to aside convictions personal make, then, but, you have an choice for easy to follow law. It’s not always easy.” (Italics added.) choices in this aren’t society a final time as he closed his point argu- returned to prosecutor case, you your duty ment: is. You’ve “In this have decide what sense law, you and it seem to might taken an oath to follow the as as unpleasant you outweigh if that the factors in those aggravation personally, judge can, way every I I factors in worked out but time come mitigation—T may like always aggravation.’ back to The scales You not tip it.. favor held as a may yourself you feeling that result. You find shocked that what you unless it was the most that would death impose penalty [the] crimes, your a scenario in mind of you heinous of and would work out And if find you and children and sexual multiple carnages. nuns murders cases, case, that have most you you don’t that kind of heinous of but where, law, according aggravation outweigh have case to the factors an to make. you easy and must the death choice impose penalty—not law, you duty your finding, “But have a to follow the and if outweighs you must death You aggravation mitigation, impose penalty. such would be not to finding have no other choice. To do otherwise upon down, your system and your job, violating letting be oath doing a sense. your on you

“If overlook the evidence vote based heart based oath, emotion, you’ve your you’ve a sense then not followed done job. who here and tried to do their jurors disservice the other sat factors, as you try objective “I to be analyze simply ask that when these the death your feelings and to about possible personal penalty remove and both sides these factors on each of and evaluate deliberations your from on the goes down the scale you drops, scale. And them on that place if find the must impose is clear. You it I'm your duty, aggravation, side afraid have a you and your duty, That’s like it. you even don’t penalty, death if added.) law, you (Italics can.” I’m confident that the and duty to follow time and did, message, the delivered as he the arguing prosecutor In aggra- whether to determine jurors the simply that the law again, required fix the and then circumstances mitigating outweighed circumstances vating directs. That language as the mandatory-penalty-determination penalty the character of course, incorrectly It described erroneous. message, determining penalty: in the process to be resolved the ultimate question outweigh factors aggravating whether is not to determine jury simply “The that as a result of the death impose penalty factors and then mitigating at Myers, p. (lead opn. v. supra, determination.” (People Bonin, see, 856; Grodin, 3d at p. 47 Cal. supra, J.); e.g., People Brown, mind, juror a reasonable could my To 541.) Cal. 3d at supra, p. Certainly, the import. words or their not have the ignored prosecutor’s deliberations, (but were they requested jurors during this case did not: entirety.11 in its argument of the denied) rereading prosecutor’s 11 juror argument misled a reasonable concluding prosecutor’s the would not have In determining penal process of question of the ultimate to be resolved in the as to the character urged to follow the law ty, majority “Although prosecutor repeatedly the the the reason: circumstances, outweighed mitigating those aggravating if it determined that circumstances regarding jurors’ urgings repeated . . . . . . discre repeated were offset statements jurors they tionary weighing process. . . . are told can determine control over the [W]hen circumstances, mitigating individually weight assigned aggravating and to be to the others, necessarily they they have outweighs all understand can decide that one circumstance Also, prosecutor penalty. on one occasion appropriate discretion to select the [Citation.] jury’s determining appropriate penal penalty expressly in terms of described the function way ty, stating: system designed 12 members of the ‘The in such a that it is felt better for community, community, appropriate pun to decide what is an who reflect the values of the ” ante, agree. pp. 1034-1035.) I (Maj. opn., cannot ishment this most serious of cases.’ view, ques- my misleading of the ultimate prosecutor’s comments on the character assertedly determining process penalty not “offset” other tion to be resolved in the were juror Certainly, would process. in this case a reasonable correct remarks on the nature of that ap- to select the prosecutor’s argument that he had discretion not have understood from the very contrary, argument that have understood from that propriate penalty: on the would Moreover, the nature of prosecutor’s remarks on appropriateness was not his concern. They may good. have ade- determining harm than process penalty doubtless did more jurors. they perverted given But offered a quately of the discretion to the described form they penalty-determining again portrayed the nature of view of its substance. Time your feelings objectively. Try personal about the impersonal: not to let process as “Do it intrude, you’re permitted do that. You’re not penalty as a matter of law not death because give objective assess and evaluate and permitted do that. You have to be about this. You and, you you ana- goes”; “I ask when weight each of the factors and decide where the scale factors, your try personal lyze simply objective possible to remove feel- these to be as above, your explained ings penalty deliberations.” As the nature about the death from Bonin, supra, process (People v. penalty-determining is not such. It is a “moral assessment” that could have nothing said defense counsel in his summation

Finally,| mandatory-penalty-determination that the juror to believe led a reasonable to deliver did court was about instruction the trial in the language and the words argument, law. The of his gist correctly applicable state ended, only In his a death case.” penalty that “this is not with which there was “much urged counsel objectionable language, allusion to the out- circumstances aggravating whether the than! a reasonable doubt more fact, With aggravation.” “mitigation outweighs the weigh mitigating”—in if words, aggra- law that the that it was indeed the counsel suggested these of death had the the outweighed mitigating penalty circumstances vating not satisfied. the condition was only declared that but imposed, above, instruc I that the trial court’s would hold For the reasons stated language mandatory-penalty-determination with the tion in accordance the as jurors indeed have misled might of section 190.3 the final paragraph discretion, prejudice, to defendant’s sentencing the of their scope Therefore, I would set aside Amendment principles. violation of Eighth penalty. (See, e.g., People reverse the judgment verdict of death 508, 888, 940].) 765 P.2d Cal.Rptr. Farmer 47 Cal.3d 931 (1989) [254 VI appli- when it denied defendant’s committed error

Finally, the trial court section death under Penal Code of the verdict of cation for 'modification 190.4, its review was 190.4(e)), section because (e) (hereafter subdivision limited. improperly death, made a verdict- defendant returned the verdict

After The trial court denied 190.4(e). under section modification application outweigh factors in aggravation in substance that “the reasoning application, doubt.” beyond any reasonable mitigation th ose on an ruling application in relevant l|90.4(e) part Section provides evidence, death, “the shall review judge of a verdict of for modification consider, account, mitigat- guided aggravating into and be take 190.3, make a determina- in Section and shall circumstances referred to ing that the ¡whether aggravating and verdicts jury’s findings tion as to irreducibly as to whether the 856), profoundly personal determination 47 Cal.3d at p. should live or die. Further, no “appropriate punishment” is of conse- prosecutor phrase uttered the that the misleading argument transforming Manifestly, magical power, quence. the words have no they no effect at all: a rea- operato. power such have proper exposition opere ex Without into simply penalty penalty” mean juror “appropriate have understood ¡would sonable “mandated" the “law.”

1069 contrary to law or are circumstances outweigh mitigating circumstances the evidence presented.” deter- independent trial make an judge 190.4(e) “requires

Section the defendant is penalty upon the death imposition mination whether law.” (People and the applicable the relevant evidence proper light P.2d 113]; Cal.Rptr. Rodriguez (1986) accord, v. Johnson V, is ante), penalty Part (see As above 1047].) explained merely all the circumstances—not if death is under only

proper appropriate Therefore, 190.4(e) requires if section aggravation outweighs mitigation. imposition determination whether that the make an judge independent trial circumstances, not simply all the under penalty appropriate death mitigation. whether aggravation outweighs I not a determination. do fault trial here did not make such judge

The before the relevant application him his error: he defendant’s passed for Brown, 40 3d v. Cal. law clarified in such decisions as People supra, 538-544, But the Rodriguez, and 792-794. supra, remains, fact he did indeed err.12 I as to and remand the judgment would vacate the

Accordingly, penalty cause to the trial for redetermination of defendant’s judge application Rodriguez, supra, modification of the verdict (See People of death. Cal. 3d at p.794.)13 12 conclusion, contrary coming majority question ag In to the the reason that “the whether outweigh mitigating separated from the gravating circumstances circumstances cannot be de weighing aggravating mitigating appropriateness for . . . the circum termination by jury penalty appropriate. the stances is the method which determines which is [Citations.] jury’s judge’s Thus . . . that the de the trial stated conclusion also constitutes conclusion weight (Maj. opn., appropriateness evidence.” supported termination of of the

ante, reasoning original.) agree. majority’s p. at italics in I cannot would sound aggravation outweighs mitigation logically if the determination that entailed determina above, appropriate explained tion it that death is under all circumstances. But as does reviewing application choosing not: in in the first and in that choice on for mo death instance verdict, jury judge respectively whether that dification of the and the trial must consider circumstances, penalty appropriate simply aggravation all under whether out V, weighs mitigation. (see ante), But because of Brown error Part I cannot conclude with necessary required. the above, that the for the reasons stated confidence acted as was And fact, judge, compelled to the trial not. I am conclude that did 13 threatens, on a the evident that it I feel constrained to comment cer Because of mischief appears majority opinion. tain dictum that in the discussing provided claim assistance because he defendant’s that trial counsel ineffective mitigation, majority present failed available evidence in state that “The invited-error estop claiming operates ... from ineffective assistance counsel doctrine requests.” based acts or in conformance with the defendant’s own on counsel’s omissions ante, 1032.) (See (Maj. p. agree. I the trial court. opn., cannot The doctrine covers error 301-304, Witkin, 313-316.) 1985) It generally (3d Appeal, pp. does Cal. Procedure ed. §§

VII reasons, aside defendant’s setting as to except For the foregoing felon, I firearm a convicted of a concealable conviction for possession court. judgment dissent from and Dissenting. with the

BROUSSARD, J., agree generally Concurring I concurring dissenting opinion. in his by Justice Mosk expressed views Mosk, 1, 1990. February was denied rehearing for a petition Appellant’s Broussard, J., J., grant- should be that the opinion petition were of ed. it be extended to do so. performance counsel. Nor should appear tq apply not Otherwise, to deficient assistance, viz, predicated those of ineffective the most substantial claims barred—surely an judgment, independent professional would counsel’s to exercise failure

untenable result.

Case Details

Case Name: People v. Lang

Court Name: California Supreme Court

Date Published: Dec 7, 1989

Citation: 782 P.2d 627

Docket Number: S004655. Crim. 24257

Court Abbreviation: Cal.