*1 3, Mar. No. 23029. 1988.] [Crim. PEOPLE, Plaintiff and Respondent,
THE MELTON, and Appellant. Defendant JAMES ANDREW *10 Counsel Court, Kane, Defendant Supreme
Robert F. under appointment *11 and Appellant. White, General, Assistant Steve Chief Attorney
John K. Van de Kamp, Jr., Corona, General, Deputy Attorney Carney W. and Rudolf John General, Attorneys Plaintiff and Respondent. for Opinion convicted of one
EAGLESON, J. James Andrew Melton was Defendant Code, burgla- one count of (Pen. 1891), count of first murder degree §§ penalty Under the 1978 death ry (§ 459), robbery (§ 211). and one count of law, the murder was initiative were found true that circumstances special 190.2, and of a (a)(17)(i)) committed in subd. robbery (§ the course of a (id., for the the death burglary penalty subd. The (a)(17)(vii)). imposed murder. This is automatic. appeal phases guilt
We find no error at either the prejudicial respects. in all judgment defendant’s trial. We therefore affirm the Trial I. Guilt A. Prosecution case. 13, 1981, Anthony found officers Tuesday police
On October evening, DeSousa, 77-year-old DeSousa dead in his Beach condominium. Newport bed, naked, male, in front his hands bound White on his back in lying was His face vanity mirror. an electrical cord from a body portable of his with wound tightly was and a woven cord mesh-type was covered with pillow, was ring” wrapped known as a “cock around his neck. A leather strap around DeSousa’s penis. statutory
1All the Penal Code unless otherwise indicated. references are to shortly head face and severely about the The victim had beaten been The condi- a broken canine tooth. death; had caused beating before his days. for several had been dead body tion of the DeSousa suggested had been the victim opined who pathologist performed autopsy In the pa- him unconscious. strangled to death rendered beating after his view, injured would have beating had inflicted the thologist’s whoever hands. spattered condominium Blood was had been ransacked.
DeSousa’s for his empty except was found throughout the bedroom. DeSousa’s wallet blue matching Two driver’s A been jewelry pried open. license. box had table dining On apartment. socks in the were found locations separate The premises servings pie. were and two uneaten two used dinner settings were ana- samples were and bloodstain thoroughly dusted fingerprints lyzed; none matched defendant’s.
On officer that defendant Johnny Boyd parole October told one arrested in the officers day, investigating involved homicide. The same *12 the vic- defendant near his as car. Two of residence he entered DeSousa’s tim’s rings were found in his possession. a waiver
Detective Hietela to Miranda pursuant interviewed defendant 1602, 694, 10 (Miranda v. Arizona 86 S.Ct. U.S. L.Ed.2d DeSousa, A.L.R.3d When if he knew 974]) shortly after arrest. asked Saturday, had they defendant were He he replied spent that lovers. said October had lent Disneyland with victim at and claimed DeSousa day him his and p.m. car. left at Defendant asserted he had DeSousa denied having any of the decedent. property other friend, H. After
Defendant had been at a Diane staying apartment of defendant, it and searched interviewing apartment Hietela went to Diane’s cameras, with her consent. a luggage, projector, He discovered movie several two pawn electronic DeSousa. He also recovered belonging items to tickets, tickets By discov- bearing signature. police defendant’s these tracing redeemed, ered that one of on October had then pawned, defendant DeSousa’s Police ret- rings found in his when he was arrested. possession rieved October rings another DeSousa’s defendant had sold on which in jewelry reusing to a down company melting gold business stones.
Boyd grant In return for was witness. principal prosecution inmates were fellow immunity, testified as follows: he and defendant While in in prison. had been lovers Colony (CMC) California Men’s CMC, older, ran person- males who they conceived a to solicit affluent plan Advocate,
al advertisements in the Attempts a national gay newspaper. men, be would made to obtain from the as if force property gifts possible, if necessary. Boyd, he was while
According January released from CMC still Boyd was incarcerated. went to live with his parents Pasadena. In the summer arranged he noticed DeSousa’s ad and residence, a dinner at meeting. During DeSousa’s DeSousa explained he liked Black men with tendencies and pre- “masculine” sadomasochistic ferred the they feminine role in sex. The therefore concluded were not two sexually they but to see each other as friends. compatible, agreed again “cousin,” Boyd mentioned that DeSousa be interested in his who was might tall, 6 feet weighed and had a 29-inch waist. He was pounds, referring to defendant.
Defendant was released ex- Boyd from CMC on 1981. had August H., they pected would live but defendant moved in Diane together, with ad, then flew New York for three then weeks to an Advocate response returned to Los on an Angeles airplane by Boyd. Again, ticket purchased defendant lived with Diane. defendant’s
Upon Boyd return to Los told him about DeSousa. Angeles, worn, He mentioned in and the particular two valuable DeSousa had rings two to steal agreed Boyd DeSousa’s a dinner for the property. arranged home, three at DeSousa’s 8. Thursday, take October Before the place occur, however, meeting could Boyd arrested on theft charges petty *13 and detained in the Los Angeles County agreed Jail. He and defendant the latter would rearrange with DeSousa. meeting
Boyd called DeSousa several and no Saturday, got times October answer. He formed the to DeSousa. opinion had something happened
Boyd next at the spoke Sunday with defendant on October morning, De- jail. holding Defendant was and was wearing rings two DeSousa’s defendant, him keys. Sousa’s at the According up to DeSousa had picked Disneyland Hotel on to DeSou- Saturday they and had returned morning, sa’s condominium. to When for had pressed happened details on what DeSousa, would initially Presently defendant was reticent. he said DeSousa home, not be able anyone finally to tell that defendant had at his then been made a distinctive a scar strangling gesture Boyd with hands. noticed and broken skin on defendant’s he had worn knuckles. Defendant said socks over his hands to eliminate He he had fingerprints. explained placed Grey- luggage other to DeSousa in a at the property belonging locker hound bus in downtown Los depot Angeles. cross-examination, defendant’s ob- he Boyd upset
On admitted was intention, CMC, intimate resume their not to vious his release from upon David investigator, a defense Boyd also conceded he had told relationship. to A reference murdered DeSousa. that a man named Charles Carpenter, during Boyd a letter from to defendant Charles as the killer also appeared trial, he made Boyd claimed County jail. At Orange the latter’s detention Charles at defendant’s up urging. at 10 a.m. on by bus
Diane H. testified that defendant left her apartment owed meet a friend who Disneyland October to to saying going $30 called him. About 5 money. p.m., him He had around with his friend they evening, indicating to find a to attend that suggest party noise on the had loaned him for the The background his car weekend. from a bar. defendant was telephone gave calling impression De- driving Defendant half an hour later arrived at Diane’s apartment some, cash, $200 in he said was Sousa’s car. He was about which carrying all, to but not his intention money the friend owed. Defendant expressed remainder, if Diane the car and he asked keep friend did not pay how to aget in his name. pink slip Sunday, said
Diane she and defendant a drive to Chinatown on planned they October after Just as were Boyd jail. he returned from visiting Chinatown, Diane be- leaving for Diane answered the someone telephone; Boyd lieved was defend- phone, asked for defendant. After hanging up ant said they things would have to at the bus some stop depot pick up “John.” At the luggage belonging defendant retrieved depot, property to DeSousa which in Diane’s apartment. was later discovered
Diane also testified that she had a conversation on cross-examination Boyd with shortly Boyd going go after defendant’s arrest. said he was custody the “D.A.” “in no with the truth and would have defendant out of time.” found in
Finally, the introduced and notebooks prosecution calendars handwriting. DeSousa’s in DeSousa’s apartment containing entries *14 “Pasadena,” 1981, includ- in June referred to “John” from Beginning these a dated October ing description Boyd’s. page On a notebook matching waist, “James, L.A., Foot, 29-inch DeSousa had written Six in coming Saturday of John.” place
B. case. Defense Holmes, Boyd had contact- attorney,
Carl defendant’s testified that prior 27, 1981, case was by going. ed him on October to ask how the telephone He killed DeSousa. Boyd then told the that defendant having police denied already dead. him to find arrived at DeSousa’s home claimed defendant had called him; Boyd when would contact Boyd investigator Holmes told an that he advised Holmes investigator, to reach the trying several weeks later attorney of record. longer was no Boyd with that he spoke testified investigator,
David a defense Carpenter, a man a with plan he had formed Boyd a number occasions. asserted on Bar, house Charles, to DeSousa’s go at the Waldorf to named whom he met at the prelim- defendant falsely him said he had accused Boyd and off".” “rip to attempt did not inary being “jilted.” Carpenter as hearing revenge information, description Boyd’s including locate Charles because Nor did Charles, investigation. to launch quality” was “not of sufficient entity. any law enforcement Boyd with to his conversation Carpenter report However, Boyd to to the go prosecutor. Carpenter urged he had participated in his own behalf. He conceded
Defendant testified advertisers, from Advocate obtaining property about prison discussions carry out intended to only he time” and never “passing but said was “go release, H. marry to Diane After his defendant plan. planned straight.” stated, release, mentioned Boyd he
At some after defendant’s point plans, to their according prison steal DeSousa they property should from up DeSousa set with meeting but defendant was not interested. He missed Later, scheme. Boyd’s by Boyd because he did not wish to be involved financially, or defendant Boyd help DeSousa be able to suggested might DeSousa; they discussed a job. Friday, with On October defendant called They agreed “a in homosexual activities.” job, place stay, engaging plan. defendant’s encouraged day. Boyd, by jail, to meet the next then defendant, by bus to to travel DeSousa agreed he had with According bus if Hotel, home then continue on to DeSousa’s Disneyland from the DeSousa him Defendant called busy DeSousa was too to pick up. bus as answer, hotel; when DeSousa did not defendant proceeded they arranged. had residence, ajar; door front defendant found the at DeSousa’s
Arriving in out walked no Defendant got response. called out DeSousa’s name ransacked, up- and went room had been “curiosity,” living saw that the ran back out There DeSousa dead. In a panic, stairs. he found to Los for a bus back stop Unable to find the stop. the house toward the bus house, keys, which DeSousa’s up to the picked defendant returned Angeles, *15 floor, garage. DeSousa’s car from were on the bedroom and took lying gambled where Los Angeles, Bar in downtown He drove to the Waldorf hours, H.’s apartment. to Diane three then went for two or jail during Boyd to the experience recounted day, The next defendant to encouraged Boyd a bit.” visit; “kind of smiled just the latter pink slip a bogus in obtaining to assist DeSousa’s auto and offered keep visit, During the car. to keep Defendant decided defendant’s name. from that, a call receiving after Boyd to defendant also as a favor agreed to pick depot Greyhound at the meet Charles Boyd day, later that he would the call received Boyd’s. Defendant luggage property some and other up He Chinatown. leaving and Diane were Diane’s as he apartment just Diane’s Charles, apartment. back to and took it met retrieved the property, He rings. one of and pawned He and watch rings two appropriated Boyd it because sold winnings later this with ring gambling redeemed at the “money jail. wanted on the books” at the Hietela to Detective
Defendant his inconsistent statement admitted him Hietela told arrest; “scared” when time of his he said he became residence. DeSousa’s stolen from were informed he had police property for the informant suspected Boyd Defendant concluded that was the defendant, Boyd implied to According first time that he had been “set up.” death DeSousa’s that he knew the truth about subsequent conversations returned Diane and rid” of “got but would unless defendant help to the authorities Boyd him. get go Defendant conceded he had tried to information, homosexual resume with his even at one agreeing point as Charles to make Boyd. Boyd up with He with conspiring relations denied DeSousa’s killer. Penalty Trial
II.
A. Prosecution case. felo- entirely prior around evidence centered prosecution’s penalty 190.3, stipulat- Defendant (c).) nies committed subds. (§ (b), defendant. convictions, no contest. felony guilty ed to seven all entered on pleas 19, 1971, (2) May The convictions of Bernice N. on (1) robbery included of Pau- Bernice, (4) rape June robbery of Paula N. on rape la,2 D. December James on deadly against assault with a weapon Montoya, the offense Ruben the stolen (6) concealing property Inc., Hoedra, 21, 1979, from theft occurring August (7) grand 14, 1978. 2 and November occurring offense between November deadly against while armed with Paula Defendant admitted he committed offenses weapon. *16 defendant’s
Despite stipulation, objection, prosecution and over Bernice, Paula, about introduced detailed and James testimony of a crimes them. also evidence crime of against prosecution presented convicted, S. on Nancy had June which defendant not been rape 1971. that,
Bernice, a in on school who school testified taught nursery Berkeley, De- pets. son to the school’s holiday, 10-year-old she went with her tend $3, son in a bathroom. He fendant her of and locked her appeared, robbed her, sex, her he and struck unconscious finally announced wanted menaced her He took wallet with a tire iron. He her to have intercourse. then forced threatened to her credit and driver’s license. Defendant containing cards kill retained a forehead Bernice and her if she screamed. The victim son emotionally her dis- scar from the tire iron. Both she and son remained turbed the incident.
Paula, defendant, with a at the time of her encounter college student bill, $10 him in threatened her found her one He took a apartment evening. her, screwdriver, with a knife and and the apartment then ransacked raped for more property.
James, man, to elderly he in 1975 defend- Oakland testified responded weekly, in ant’s ad a He visited in devel- gay prison defendant newspaper. a love and in money and defendant with oped provided gifts relationship, $12,000 they excess of would live They over a three-year period. agreed in a sexual together Though as father and son. defend- relationship adopted release, ant went to live he with Diane H. after his continued to defendant money. James In December when manipulate spent house, Oakland, key some time to his where gave James defendant a visited from was in the defendant time to time. Late one defendant evening, James After was appar- house when returned from work. James what giving drink, ently they a declared some S drugged “going play were M.” began & He James’s wrists with razor-like instru- slashing sharp, a ment, “I am suicide.” He saying, you to make out that committed going James then beat James was severely. job telephoned, When James’s foreman trouble, James able to that he and the was signal was intervened. police He for five suffered hospitalized days and off work for some five months. injuries the assault. permanent from
Nancy S. testified alone as a morning part-time she was one working to use the secretary Berkeley Defendant and asked synagogue. appeared so, her, After his intention “fuck” phone. doing grabbed expressed her, near platform, her area at the of the dragged recessed back Ark where the He her with his fists with again again beat kept. *17 her on jumped to bleed He cylindrical object, a hard her causing profusely. knife. He or eight-inch his knees and menaced her with a six- chest with or penetration. unable to achieve an erection intercourse but was attempted $5, change took of about Defendant robbed the cash box synagogue’s petty holder, and found checks her Nancy’s rummaged through purse, from coin if and her children get with her name and address. He threatened to come scar. and retains Nancy permanent she called the was police. hospitalized B. case. Defense family
Various members of testified about his childhood defendant’s child, a “loner” They character. indicated that defendant was an unhappy and ran by who did not fit in. he received stepparents, whippings Raised Authority away at the of 11. He first entered the California Youth age in CYA but never (CYA Authority) sought counseling 13. He age CYA, family mem- received it. While in he maintained limited contact with letters, bers his they rarely but him. He shielded telephone saw did family from the sentence for He rape. reasons for his subsequent prison sisters, consistently not discuss his own of his problems, protective them in urged stay out of trouble. He about violence complained prison and refused to in participate it. West,
Pearl CYA’s director from 1976 to testified that defendant’s CYA records had destroyed majority. been at the time he reached She coercive, described generally and violent depersonalized, atmosphere incarceration at early CYA. West CYA reported indicating studies commitment increased the She likelihood of criminal behavior. subsequent that, incarceration, after CYA explained guide- defendant’s she tightened lines for admission to the institution and defend- would not have authorized ant’s commitment for his then-committed offenses. felon, Davis,
A convicted David testified about the hardships prison life. There were indications was a from several witnesses that defendant inmate who cooperative gangs. avoided violence and prison Defendant was and a Podboy, examined a clinical Dr. psychologist, Dr. Aaron. or dull- psychiatrist, Each that defendant was of low- opined normal as antisocial intelligence and suffered from the disorder known ability Both to function personality. suggested that defendant showed an in a not control rigidly well structured environment like but could prison, or actions an unstructured Dr. Aaron impulses setting. reported also defendant said he had been in CYA. Defendant gang-raped frequently advised Dr. Aaron that trauma during extreme emotional experienced medication years antipsychotic
his first two and was prison placed his examination and Mellaril while Dr. Aaron testified that county jail. CYA records. hampered by conclusions were the destruction of defendant’s Jury III. Selection Issues all *18 cause prospec Defendant notes the excused for prosecution penalty the death they absolutely tive who stated could not vote for jurors 776, 510, L.Ed.2d (see v. 391 U.S. 521-522 Witherspoon (1968) Illinois [20 784-785, 88 S.Ct. if their views they even asserted that 1770]), Fur impartially. would not them from or innocence prevent judging guilt observes, ther, all members of challenged he the prosecution peremptorily He penalty. urges the venire who reservations about the death expressed unconstitutionally unrepresenta that the resulting jury was guilt-prone community. of the tive v. Chavez consistently (1985)
We have such claims rejected (e.g., People 823, 49, v. Fields 39 Cal.3d 827 705 372]; People (1983) P.2d Cal.Rptr. [218 329, 803, 35 Cal.3d 374 673 cert. den. 469 680], (1984) P.2d Cal.Rptr. [197 204, v. 267]; Hovey U.S. 862 L.Ed.2d 105 Court Superior S.Ct. see [83 1, 128, 1301]), 28 616 P.2d and the (1980) Cal.3d 61-69 Cal.Rptr. [168 (Lockhart recently United our views. Supreme States Court has vindicated 137, 148-150, 162, 106 v. McCree 476 174-176 L.Ed.2d (1986) U.S. [90 the reconsider issue.3 appears No reason S.Ct. 1758].) 3 that, brief, in a 278 opening passing In his reference to the fact venire of defendant made Black, juror. prospective jurors, only chosen as One person and no Black was three were prosecutor, prospective juror, challenged peremptorily Mr. the an Simpson, Black was reasons, rehearing, alternate. On other was excused for medical and a third was selected as an was on argument peremptory improper defendant claims he that the exclusion intended an 258, 276-277, grounds (1978) “group (People of bias.” v. 280-282 Wheeler Cal.3d [148 79, Cal.Rptr. 748]; Kentucky (1986) 84-100 L.Ed.2d 583 P.2d v. 476 U.S. [90 see Batson 69, 79-90, finding 1712].) “implied” urges prima an of 106 S.Ct. He that the trial court made Cal.Rptr. (see People facie v. 42 Cal.3d discrimination Turner when, motion, appellate 102]) prosecutor explain its “for the rec P.2d own it asked the why excluding prosecutor’s Simpson. the answer ord” was Defendant further contends However, clearly resulting group record presumption to rebut the of bias. the indicates failed exclusion, only in potential Simpson’s but acted an abun impropriety the court saw no finding prima request implied facie “group dance caution about Its was bias.” event, reasons, prosecutor’s In which included concern about discrimination. the stated Wheeler, (see supra, Simpson’s suggesting specific dire answers racial Cal. 3d at voir bias 275-276; P.2d pp. Turner 37 Cal.3d 669]), amply supported by are the record. composition as a Finally, of the venire was intended if defendant’s brief reference to similarly jury-pool procedures, it must fail. De- claim of unconstitutional bias in the selection venire, quash attempt pool he made to show that fendant never moved no community population. disproportionate to the relevant Special
IV. Guilt Phase Circumstance Issues A. Boyd’s Trial court’s treatment demeanor. testimony and the extensive During Johnny Boyd, prosecutor direct examination of on several answers. Boyd’s occasions indicated that he was unable to hear instances, In other Boyd inability to remember details of professed dealings with defendant and had to have refreshed his recollection reading his preliminary hearing testimony. examination,
At the conclusion of the jury’s and out of the prosecution’s presence, the following exchange your occurred: “The Court: Take off glasses Mir. again, Boyd. Look over I way. you this want to understand [fí] Boyd. Mr. something, The court is not in which satisfied with the manner you have been answering questions. you your If can’t voice keep up, *19 court is to going you do so. require When counsel asks questions Rf] you, he is entitled to answer. He is entitled to a reflection of what the truth is. And the is You jury entitled to an they answer that can hear. [1f] that, haven’t been doing you If do yourself not conduct in the court’s flf] witness, mind as an appropriate the court will consider action contempt you. that, against you Do understand sir? Witness: Yes. [fl] [fl] The [jf] Okay, let’s your voice keep up.” The Court:
Defense counsel then requested that this be admonition front repeated of the jury, Boyd’s since demeanor was critical to evaluation of his credibili- ty. However, The trial court declined to restate the in full. it did warning that, advise the because of difficulty jurors the “obvious” some were having hearing the witness’s testimony, Boyd been admonished “to had hold his voice so up he can be heard.”
Defendant now argues that the curt and overly “secret” admonition was Thus, threatening. defendant urges, it constituted improper “coaching” intimidation of the witness which may falsely have credible produced demeanor. trial,
The must be point deemed waived. At defendant’s counsel approved admonition, even asking that it be in full in court. He repeated open actively thus discouraged trial court from might action which diminish the “sting” of its comments to the witness. event,
In any suggests remarks were not Defendant improper. they implied the court’s belief lying, that the witness had been were unduly harsh in warning of a possible contempt citation.
734
However, duty orderly has the to ensure a fair power court 291, v. 301 trial Court 55 Cal.2d proceeding. (E.g., Cooper (1961) Superior v. Smith 13 274]; (1970) Cal.App.3d 359 P.2d Cal.Rptr. People [10 897, “ ‘see 52 A trial should 875].) judge 907 A.L.R.3d [91 whomsoever,. . . in no act or conduct calculated it that all persons indulge ” v. (1956) Merkouris justice.’ (People to obstruct the administration 999], P.2d v. Harris Cal.2d quoting [297 65].) P. While a direct has peijury accusation Cal.App. [188 280, 282 v. Cal.App.2d been condemned (People Steinfeld Boyd charge. did with such a 89]), P.2d instant court not confront hesitant, Rather, responses inaudible it exhorted the witness avoid the Venegas (1970) Cal.App.3d borne out (see People the record reasonably expect- thus a manner Cal.Rptr. 103]), and to behave ed of a witness. see no We impropriety.4 Boyd which while
Defendant also of another incident occurred complains length on the stand. counsel about Boyd Defense had cross-examined defendant, “Charles,” his claim to had investigator Carpenter Boyd by killed DeSousa. rehabilitate demonstrat- prosecutor sought that, oath, had named defend- ing Boyd consistently when under testifying of his and ant as the killer and insisted that Charles was a apparent figment defendant’s imagination. *20 examination, occurred; following Q. [By
In the course of redirect the “[ft] Mr. Geary, somebody the Have ever testified under oath you prosecutor]: Mr. other than you somebody else killed or that else the thought DeSousa had ever testified Q. you defendant killed Mr. DeSousa? A. No. Have [ft] [ft] about you today under oath than on direct examination the differently have Mr. Bonner coun- events Mr. DeSousa’s surrounding death? [ft] [defense broad, The Court: Sus- Objection. That’s because it’s so vague sel]: [ft] By Geary: in different Q. any tained. Mr. Have testified manner you [ft] death, under oath Mr. DeSousa’s different surrounding about the events brief, position—that, evaluating in reply appears In his his trial defendant to shift back to extremely Boyd’s credibility, jury entitled to court had delivered an stem the was know the might Boyd’s which in the of false credibili admonition have influenced demeanor direction Boyd’s ty. prejudicial the end of regard. There was no error this The admonition came at any testimony, jury to during ample opportunity direct which the had note evasiveness re admonition, tell Though repeat luctance to answer. declined to the entire the court did the it jury Boyd jury any up.” had “hold The able to observe been ordered to his voice was change Boyd’s might from the admonition. demeanor which have resulted suggests jury Boyd Defendant erred when to advise the it had warned the court it declined insists, entitled, jury to tell the “troth.” the court mistrusted The was know Boyd’s testimony. any judicial prosecution, not appears such mistrust favored the the But it jury’s presence thought defense. Other court indicate the court comments the outside the lover,” Boyd, “distraught being give answers of his reluctance to which evasive because damaged jury defendant. A rational could not have been misled. than you today? what testified to Same objection, Mr. The Bonner: [fl] [fl] Court: Sustained. This record some the slight discrepancies [^J] reflects preliminary hearing versus here because the transcript testimony what Geary: court observes to be lack memory. flj] you.” Yes. Thank Mr. (Italics added.)
Defendant claims the
remark
the
court’s
bolstered
improperly
credibility of
key
the
prosecution witness.
first
People
respond
The
defendant made no timely objection, and the
must
therefore be
point
alia,
deemed waived.
(Citing, inter
Ramos
30 Cal.3d
People
639 P.2d
Cal.Rptr.
(hereafter
I);
Ramos
v. Green
908]
Cal.3d
The of the purpose rule requiring timely objection is to give trial court error, opportunity cure if by an possible, jury. admonition (Green, Here, 27 Cal. 3d at p. 27.) objection was raised at a time when the could still have been told to disregard court’s comment court, on Boyd’s testimony. matter, given a chance to consider the ruled that its remark had been proper There is no nonprejudicial. reason to hold that the issue was waived. *21 must, however,
Defendant’s argument on A rejected the merits. be California may evidence, trial court comment the credibili including witnesses, ty accurate, of so long as its are remarks temperate, “scrupu lously fair.” (E.g., (1983) Cook Cal.3d 407-408 [189 course, 658 P.2d Cal.Rptr. 86].) Of the court may not its views express on the ultimate issue of guilt or innocence or “usurp jury’s otherwise exclusive function as the arbiter of fact and the questions credibility of (Id., witnesses”. at pp. 412-413.) The propriety prejudicial effect a particular by comment are judged both its content and the circum stances in which it was made. v. Flores (People Cal.App.3d 584-585 138].) brief, remark was abuse. The court’s
Here there was no prejudicial Boyd confronted mild, fair, counsel had in context. Defense and peripheral hearing. testimony at the preliminary of inconsistent several examples with occasions, counsel had resort and defense both prosecutor On certain other when Boyd’s recollection to refresh transcript hearing ed to the preliminary But these incidents facts. inability particular to remember he professed details, places times and precise such as the relatively involved minor before trial. As year more than a which had occurred various conversations the basic events under oath about never varied Boyd the court suggested, DeSousa’s death. to leading forestall context, only intended was apparently
In the court’s comment already well discrepancies into noncrucial time-consuming reinquiry course, Boyd had also well aware that The was jury. jury, known and it story investigator Carpenter, to defense entirely an different given in mind. credibility with that could evaluate his guilt, the evidence of his Finally, contrary suggestion, to defendant’s circumstantial, testimo- Boyd’s without extremely even strong though jewelry; car and of the victim’s Defendant was arrested ny. possession shared in the residence defendant of the victim was found property other H., still other such property. Diane and defendant had pawned with as a to receive defendant that he intended victim’s own notes indicated 10. Saturday, visitor on October
Defendant, turn, DeSousa’s residence on he had been at admitted But his claim of a “set- day, already dead. that he found DeSousa insisting In it strains up” by Boyd highly implausible. particular, and Charles was robbery-mur- brutal credulity innocently upon that one who had come and fear of involve- his “panic” der of a benefactor would potential express admits he stole the victim’s ment Defendant as defendant did. suggests car, date with evening vehicle for to a bar to used the proceeded gamble, fiancee, keep title forged after reflection to obtain and decided Hietela cast further to Detective car. Defendant’s inconsistent statements that the probability There is no reasonable credibility. serious doubt on his verdict. (SeePeople affected the Boyd testimony and his court’s treatment of 243].) P.2d 46 Cal.2d v. Watson drug chemical undergo require Boyd B. Trial court’s refusal tests. *22 cross-examination, counsel request- defense day
At the end of the first test for narcotics. a blood or urine Boyd undergo to ed the court order but Boyd’s appearance,” “usual noted he was not familiar with Counsel 737 pointed out that Boyd day had come to court dark wearing glasses, that to have “appeared extremely heavy eyelids,” and “was slow in his re- sponses.”
The court indicated its belief “that and his strong [Boyd’s] responses demeanor is because of the fact that a being he’s witness distraught [sz'c] against his former lover.” The court ordered the to have an prosecutor expert investigator Boyd, administer a test to but it pupillary response declined to require any form testing. of chemical
The next day, afternoon, the prosecutor that reported on the previous expert police investigator had Boyd administered a test to pupillary “darkened and arms, lighted conditions” and had Boyd’s checked legs, other likely body areas for needle marks. The had investigator concluded Boyd was not under the influence of drugs. Over defendant’s renewed objection of inadequate testing, court again expressed Boyd its view that was suffering only from “distraught lover’s status.” The court expressly found Boyd had not been “under the influence of his anything” during previous day’s testimony.
Defendant urges that the court’s refusal to order testing chemical violated his confrontational since it rights, him of the deprived opportunity evidence develop bearing Boyd’s memory, perception, credibility. We disagree.
A witness’s drug may intoxication indeed be a basis for impeaching credibility v. (e.g., People 102, Manson 61 (1976) 137 Cal.App.3d [132 265]; Cal.Rptr. v. People Smith 4 (1970) 412 Cal.App.3d [84 412]); extreme cases it may render him incompetent testify (Manson, supra). Defendant must be allowed to fully any issue of the explore witness’s competence cross-examination, or credibility by subject to the witness’ right against (See, self-incrimination. v. Andrew e.g., People St.
Cal.App.3d case, But Cal.Rptr. 634].) defendant has cited no one, nor have we discovered which suggests that criminal accused is entitled on demand to subject a witness to a intru court-ordered physical sion or chemical test to determine whether he is of an under influence intoxicating substance.
Numerous cases have recognized person’s under right, due process search and seizure protections provided by both state and federal Constitu- tions, to be free from unwarranted bodily intrusions agents of govern- ment. (E.g., Schmerber v. (1966) 384 U.S. 769-770 [16 California 908, 919, L.Ed.2d S.Ct. 1826];Rochin v. U.S. California 183, 190-191, L.Ed. S.Ct. A.L.R.2d 1396];
738 528, 394, P.2d 540 Bracamonte 15 401-403 (1975) Cal.Rptr. Cal.3d [124 876, P.2d 578 In 21 284 624].) (1978) Cal.Rptr. v. Scott Cal.3d People [145 the intrusions beneath 123], this court test for court-ordered established the body’s (i.e., prior judicial a surface. It held that where “warrant” authority is “the authorization) directing bodily sought, issuing intrusion reveal intrusion will finding probable cause to believe the [material] after evidence, . . . determine whether balancing an additional test to apply must added.) . (Italics the of is . character the search requested appropriate. likeli This . . the of the against “additional. test” intrusion weighs degree necessary (P. 293.) The importance recovering hood and evidence. intrusion, such only a minimal may very slight additional be where showing test, may be as a clear that no intrusion blood is But Scott makes planned. 294; (P. see also Braca ordered on a less than cause. showing probable monte, 15 3d at 403.)5 Cal. p. him
Most cases in the criminal upon suspect the area involve intrusions against self. But it is that unreason equal rights manifest have nonparties 113 able v. Court bodily (E.g., Superior (1980) Cal.App.3d searches. Shults 108 Browning v. 297]; (1980) 699-670 Cal.Rptr. [170 A 293].) defendant’s constitutional Cal.App.3d Cal.Rptr. [166 him court-ordered right to confront a witness does not entitle to obtain against evidence in unreason rights violation of witness’s constitutional able searches and seizures.6 that remotely
Here the not cause believe probable record does establish Boyd Defense counsel did drugs. under the influence of testifying even cross-examination of Boyd. raise the While counsel subject use, the expressed Boyd’s drug prosecu- that demeanor indicated suspicion observe, tor equal and the trial both whom had an judge, opportunity The made clear its strongly perception this conclusion. court disputed Boyd’s to the reluctance of “heavy were due eyelids” responses” “slow of his affections. Nonethe- “distraught testify object lover” to against less, caution, Boyd to an undergo in an allowed abundance court recently “probable plus” bal Supreme adopted The United a similar cause States Court 662, 667-670, (Winston ancing test. v. Lee U.S. L.Ed.2d 1611].) S.Ct. heavily Superior Defendant relies Court 64 Cal.2d on Ballard psychiatric 1416], this court-ordered 410 P.2d 18 A.L.R.3d where court authorized Implicitly rec complaining examinations of in sex cases under limited conditions. witnesses examination, the Ballard court ognizing privacy represented intrusion on such “necessity.” only it indicated its made clear that should be ordered where the circumstances said, only sup necessity, generally Such if no corroboration little or court “would arise ported charge” (italics added), urged emotional condition that mental or and defendant right bearing veracity. 176-177.) of examination (Pp. had a Even the limited the witness’s has, course, Legislature recognized by overruled superseded. Ballard since been (§ 1112.) case statute 1980. *24 external examination for of and intoxication. When the result signs drug use based on proved negative, strong agreement personal the court reiterated its observation. in We find no error the court’s actions.7
C. Admission entries. handwritten notebook and calendar of made Over defendant’s the trial court admitted several entries objection, den, in in his handwriting upstairs DeSousa’s a date-notebook found “John,” on a calendar found These entries made reference to downstairs. Pasadena,” “John entered they and “James.” The dates for which were he or defendant corresponded generally Boyd dates on which testified had contact with DeSousa. The notations to indicate DeSousa’s appeared intent to meet with either “John” or “James” on each of the relevant dates. friend, Satter, DeSousa’s Albert testified that this was the fashion which DeSousa recorded with homosexual solicit- typically appointments partners ed through his Advocate ad.8
Defendant contends that
the notebook and
entries are
calendar
hearsay and were thus inadmissible to
or was
prove
appeared
expected
the DeSousa
day
residence on the
of the murder. The
People respond
the entries were admissible for that
under
v. Alcalde
purpose
Alcalde held hearsay, that a murder victim’s though statement of was admissible to prove the intent was see Evid. (Also carried out. now Code, dissented, subd. (a)(2).) Traynor Justice that the vic- urging § tim’s statement she “go intended to out with” the defendant on the evening she was killed was used being improperly, not to establish her own simply conduct, but to that of the defendant. prove 7We reach the same conclusion insofar as the court denied a urine as well as a blood test. interior, taking sample While the physical body’s a urine does not involve invasion of the it privacy dignitary by does invoke protected process interests the due and search and sei appears unnecessary zure clauses. It might to address urine tests be whether ordered on a here, showing stringent tests; necessary less than that for court-authorized blood the “show ing” clearly made defense counsel was insufficient. First, separate page Five notations were admitted into evidence. in the notebook on a dat 20, 1981, Pasadena, Inches, Pounds, 23, ed June was written “John Six Foot Three Ne Second, gro, Wednesday” telephone and a page number with a 213 area code. on another 22, 1981, September the notebook dated phone was written “John Pasadena” the same with Third, 30, 1981, September number. on the downstairs calendar for the date of a notation Fourth, read “John & Co.” with “BLK” written under “Co.” on the downstairs calendar (the apparent date), October murder a notation read “John? Pasadena” with “John” Finally, lined page out and “James” written underneath. on a notebook dated October L.A., “James, Foot, 200, waist, 29, Saturday coming place was written Six 29-inch Saturday following
John.” October 10 requested was the 7. Defendant that the court October rule on the admission of separately; each notation the court declined. the extent that Alcalde has been statute to urges superseded
Defendant of another. it use of a decedent’s statements to the conduct prove allows contends, not, Alcal- if scholarly Even the substantial criticism *25 inde that warrants that decision. regard overruling Alcalde, if the even
We
not
the issue.
of
and
Regardless
need
confront
certainly
admissi-
hearsay, they
calendar entries are
were
notebook and
true
1250,
Code,
(a)(1))—
ble to
the
state
subd.
(Evid.
show
victim’s
mind
§
of
“James,”
i.e.,
link with
he knew of “John from Pasadena” and
had a
death,
he
day
latter
the
them before his
and
a visit from the
expected
is relevant
understanding
died.9 This circumstantial evidence of DeSousa’s
Boyd’s
to corroborate
claim that he befriended DeSousa
persuaded
instruction
victim meet
Defendant could have
requested
defendant.
matters,
he
not do so.
consideration
the evidence to these
but
did
limiting
of
cannot
it
relevance.
may
Thus
that the
have
broader
given
he
complain
event,
In
harmless. Defend-
any error in
the notations was
admitting
excluded,
not to
ant
that if
had been
have decided
urges
they
might
theory
if
testify and admit his
Even such a
DeSousa’s home.
presence
however,
of de-
is
there was
other evidence
“prejudice”
cognizable,
ample
H.
Diane
fendant’s contact with DeSousa near the time of the murder.
when
visit with
testified that
defendant returned from his October
“friend,”
“friend” had lent it
he was
DeSousa’s car and stated the
driving
Moreover, defendant,
in
him.
when
of the DeSousa
arrested
possession
auto,
lovers, and that
immediately told
that he and DeSousa were
police
reasonably
DeSousa had let him borrow the vehicle. It is not
probable
entries.
the calendar and notebook
verdict
affected
admission of
D. Admission
victim.
photographs
vic
Over
of the
objection,
photographs
defendant’s
several postmortem
that,
combi
in
urges
singly
tim were admitted in evidence. Defendant
nation,
outweighed
proba
these
had a
effect which
their
photos
prejudicial
that,
He
in
on admission of
particular
ruling
tive value.
when
asserts
actually
the trial
made
it
exercised
pictures,
indicating
court
no record
352,
v.
required by People
its discretion under Evidence Code section
as is
Green,
1,
v. Montiel
(See
People
Moreover, merits, its was well within ruling on the the court’s 264, 302-303 28 Cal.3d (See (1980) discretion. v. People Jackson [168 142, 171 603, Frierson 25 Cal.3d Cal.Rptr. 149]; P.2d People charge murder The first Cal.Rptr. 587].) degree 599 P.2d felony theory theory actual as well as tried on an malice-premeditation insofar as Hence, relevant condition were body’s murder. and position v. Turner they killing. (Compare wilful and deliberate suggested 669].) 690 P.2d 37 Cal.3d as body depicts exhibit challenged People’s The first photograph, face, in discovered, bed, unclothed, hands bound over the first a pillow As the cord, around the penis. front an electric and a sexual device with theory that for the People’s this was evidence People suggest, important to the may even have consented victim was lulled with of sex and promises rendered him binding helpless. which 43, 44, are exhibits People’s
The remaining challenged photos, around place cord strangulation which show the autopsy pictures Defendant neck, victim’s wounds. of the victim’s as well as other aspects He of death. and cause beating to the willing notes that he was stipulate from in a deteriorated condition body show the points photos out that their Hence, outweighed effect he claims their decomposition. prejudicial from the physical to determine value. Yet the was entitled probative cord, strangulation of the evidence the exceptional tightness whether intentional, premedi- injuries, the nature of the victim’s other indicated tated killing. at show close
Finally, they we have examined the while disputed photos; range beating strangulation, details of a brutal death unpleasant they are a prejudicial not so that their admission constituted gruesome Montiel, Const., VI, 13; see justice. (Cal. art. miscarriage § reversal 923-925.) Cal.3d no basis in pp. We find the photographs the conviction. that,
E. testimony up he did not Investigator Carpenter’s follow Boyd’s about Charles. information witness, dis- Johnny Boyd Under as a prosecution cross-examination of the closed David Carpenter, that he had told the defense investigator, on the Boyd involvement of stated possible killing. Charles DeSousa’s another honestly per- stand that when he believed spoke to Carpenter, son, know, name he did with defendant might gone whose have home, DeSousa’s but that at defendant’s Carpenter he lied to about Charles request.
Later, witness, examination as a defense on direct confirmed Carpenter According that he had had several about Charles. Boyd conversations with Waldorf Bar Boyd to had at the Carpenter, suggested that he met Charles DeSousa, was the him off” and that Charles conspired with to “rip at the pre- killer. he had lied probable Boyd to said According Carpenter, liminary as the murderer. when hearing implicated he By cross-examination, “Q. following occurred:
During ensuing the the Geary efforts to you any Mr. make prosecutor]: did Carpenter, [the Mr. No, no efforts Q. find this named A. You made Charles? sir. person [H] [ft] gave he at all? A. the information Johnny Boyd Other than through [H] mind, even, to look me was to my begin not of sufficient to in quality A. Again Charles. How Bar? Q. about to old Waldorf going [ft] [H] Did there and description Q. you go Mr. nil. given Boyd was almost [1J] bar, any knew they ask the there if anybody at the the bartenders or people it’s Objection, people named Charles? counsel]: [defense [ft] Mr. Bonner remain, By Q. will irrelevant. Overruled. The answer Court; [ft] [H] The No, L.A.P.D. to Geary: contact you? you Did sir. Did Q. A. [ft] [H] Mr. any hung if that person check that anybody worked downtown knew bench May please.” around approach this bar? we [ft] Mr. Bonner: to follow “did not do” Defense counsel then that Carpenter what urged Carpenter’s into inquiry on information that up Boyd’s was irrelevant and After privilege. attorney work-product violated the efforts investigatory Boyd’s response that Carpenter’s the court ruled lengthy argument, specifically that credibility, questions but relevant to its story “Charles” was thereof, in- activities, would or lack investigatory bearing Carpenter’s vade the work-product privilege. work-product made on
Thereafter, objections, defense the court sustained from assistance to obtain efforts about questions Carpenter’s grounds, However, Carpenter Charles. locating agencies law enforcement County Orange notify not that he did testify objection over permitted might a third party agency, enforcement other law prosecutor, so). to do Boyd urged (though homicide be involved the DeSousa was denied. Defendant’s motion for mistrial attorney’s violated that this inquiry
Defendant renews his argument that, fail- Carpenter’s by revealing claims He also privilege. work-product information, answers disclosed Boyd’s questions ure to pursue about Charles statements Boyd’s inadmissible opinion Carpenter’s worthy not were belief. waived, objection was first is since that the issue respond however, above, As discussed very first of this line of questions.
made to the to consider the the trial court counsel in time to allow objected defense circumstances, we necessary. and to admonish the if Under issues object. deem the issue failure to do not waived claim. merit, however, work-product We find no defendant’s trial, de in a criminal testimony Insofar to actual privilege applies as *28 trial Boyd’s to investigator impeach it when he called his fendant waived defendant, Charles, was DeSou not the claim that testimony and to bolster so, damaging as suppress, privileged, killer. done he could not Having sa’s United (See of his direct examination. scope evidence which was within the 141, 152-154, 225, 95 L.Ed.2d 422 236-240 (1975) States v. U.S. Nobles [45 of a false aura to preserve He could not use the 2160].) privilege S.Ct. Breckenridge (1975) v. testimony. (Cf., People his veracity investigator’s for 913, 923, 425].)10 Cal.Rptr. fn. 2 Cal.App.3d [125 hand, Carpenter’s correct that appears On the other was, for the information Boyd’s his lack to testimony response about of did not of what Carpenter irrelevant and Evidence incompetent. most part, investiga Indeed, inquiry Carpenter’s argument, further into after the trial court cut off court, efforts, work-product privilege. The how tory deeming that these were covered already ever, had jury questions answers which disregard did not admonish the to subject. in on that been received evidence had, itself, claims, in Boyd’s “tendency to of no up
do follow on Code, 210, not Charles did exist (see 350) reason” Evid. establish that §§ asserts, seems, for as defendant responsible or was not DeSousa’s murder. It prosecutor’s suggest simply of the principal purpose inquiry agree not was invited to with Carpenter Boyd. did believe theory of the assessment. The trial court this Carpenter’s expressly accepted prosecutor’s inquiry.11 is
Lay veracity by another about the of statements opinion particular explained Appeal recently inadmissible on that issue. As the Court of 497]), the Sergill v. (People Cal.App.3d finder, not the wit- reasons are several. With limited the fact exceptions, nesses, Qualified evidence. must draw the ultimate inferences from the may understanding on experts express opinions beyond issues conmon Code, 702, 801, veracity on do not meet (Evid. 805), lay but views §§ lay occasionally A expert testimony. standards for admission of witness is only but express an ultimate based on his permitted opinion perception, (id., testimony” subd. “helpful where to a clear understanding § i.e., is based (b)), opinion where the concrete observations on which the cannot otherwise be conveyed. (1971) Cal.App.3d Hurlic (People Jefferson, Cal. Benchbook Cal.Rptr. 55]; see Evidence 29.1, lay veracity pp. 495-496.) Finally, particular about the opinion § does or reputation statements not constitute founded character properly Code, 780, on of the other (Evid. evidence subd. nor does it bear (e)), § commonly affecting credibility (id., matters listed as most statute § Thus, “tendency in reason” to (a)-(k)). opinion subds. an has no such disprove veracity (Id., 350.) of the statements. §§ is expert The instant Carpenter record does establish that him with provide or on truthfulness of who judging credibility, persons Boyd’s nothing information the course of He knew investigations. Boyd for able his interviews with reputation veracity. He was to describe itself, detail, credibility free to based leaving Boyd’s the factfinder decide 11Thus, only impeaching evi the court “If is a stated: there witness on the stand that offers trial, contrary of a so-called this witness testifies dence star witness in homosexual murder oath, testimony Boyd defense would have the presumably to the Mr. under because the *29 oath, Boyd jury falsely is . . . believe Mr. under and there another that the witness testified Charles, somebody fl|] person, obvious to the court that named who did the murder. It’s issue, you you credibility Boyd put concept that of Mr. im when that into is the factor Boyd investigation peach putting Mr. in manner on did certain and took of witness who credibility bears of the of information certain statements that the conduct receiver evidence, you to the authorities that impeaching of the and if fail turn over information to fact, individual, was, your in to turn over certain in witness not there another instructed evidence, formation, credibility in the court’s impeaching that of bears on the factor mind.” motives, on such factors as his demeanor and his his consistent background, occasions, or inconsistent statements on other and whether his statements to had the essential of truth.” The trial court thus erred Carpenter “ring insofar as it admitted testimony to indicate his assessment Carpenter’s Boyd’s credibility. reversal,
We see justice no When all miscarriage warranting however. done, was said and answered his re- Carpenter only four about questions cross-examination, Boyd’s to claims sponse Early about Charles. his Charles, Carpenter conceded he did not to this attempt locate but explained was because of fragmentary Boyd given had him. Carpen- information details, thereof, ter’s testimony about the or lack in Boyd’s information was entirely proper, since these were facts on its further bearing credibility. Any implication that disbelieved Carpenter simply Boyd was minimal context.
Later, Carpenter testify briefly notify that he did not permitted law enforcement agencies about the Charles for possible responsibility of added, however, DeSousa’s death. Carpenter urged Boyd go that he had to the authorities with story. These calcu- answers were somewhat more lated to suggest that Carpenter did simply Boyd seriously. not take How- ever, the prosecutor did not that exploit implication. only His mention of the Carpenter testimony in his closing argument was to remind the jury “the defense investigator said we didn’t check we anywhere for Charles: didn’t know enough about (Italics him.” added.) there was no Again, impro- in a priety reference to the of the quality Boyd information In provided. had view of the extremely strong evidence of guilt, there is no reasonable proba- bility that Carpenter’s questionable testimony (Watson, affected the verdict. Cal.2d at pp. 836-837.)
F Failure to instruct sua on lesser sponte included of theft. offense homicide, was instructed on the degrees unlawful including both premeditation felony-murder theories of first It degree murder. was further instructed on the charges robbery and also burglary, which formed the bases for both first degree felony murder and for circum- special stances rendering defendant eligible for the death penalty. Defendant was murder, convicted of first degree robbery, and burglary, and circum- special stances of first degree 190.2, murder in the course of a robbery (§ subd. (id., (a)(17)(i)) and of a burglary subd. (a)(17)(vii)) were found true. Defendant now urges the trial court erred prejudicially failing theft, instruct sua sponte on the crime of a lesser included offense of rob bery. We agree technical error occurred but find it harmless under applicable standard.
746 offense is a lesser included established. Theft
The are well principles (People force or fear. element of robbery, includes the additional which must 316, The court 1019].) P.2d 1 Covington (1934) Cal.2d [34 so, offense, “when if not to do requested even instruct on lesser included of the elements all of the raises a as whether question the evidence a con justify that would and there is evidence present offense are charged 39 Cal.3d (1985) v. Ramkeesoon (People viction of such lesser offense.” 455, v. Wickersham see also 613]; 702 P.2d Cal.Rptr. [216 311].) P.2d Cal.Rptr. Cal.3d DeSou- killed and robbed defendant had Here the prosecution urged men. homosexual Boyd exploit to solicit sa to a scheme with pursuant He hand, kill DeSousa. Defendant, not that he did on the other testified had murder home after the innocently at DeSousa’s claimed he arrived occurred, take DeSousa’s property. an intent to only then formed confidence, substan- testimony was defendant’s hardly it
Though inspired Defendant robbery. rather than tial evidence in of a verdict of theft support his victim of deprive asserted that he had not used force or fear already- DeSousa’s innocently upon after coming but had stolen it property, render its evidence and The believe this body. jury dead empowered outset at the failing, therefore erred accordingly. verdict The trial court deliberations, included offense the lesser to instruct sua sponte theft. harmless, however, stringent the most under even error was instruction was a theft may Insofar as apply.
standard of which prejudice the issue necessarily resolved theory, justified on an innocent-visitor killer. defendant, (People it he was DeSousa’s adversely to since found that 913].) P.2d v. Sedeno 10 Cal.3d conclusively question resolve contends this did not finding Defendant instructed, have jury could he robbery. urges, Properly of theft versus As he points intent.” theory found mere theft on a different of “after-formed victim, the out, has also assaulted even if one who steals from another assault. theft, only after the arose robbery, if the intent to steal is taking (Green, p. 54.) 27 Cal.3d at also con- record, Defendant was rejected. must be argument
On this was found circumstance burglary, burglary-murder special and a victed must have residence true, entry to DeSousa’s under instructions that Thus, necessarily the jury robbery. been of either purpose theft assaulted steal formed the intent to that defendant determined before
747
(Sedeno,
the
to instruct on
failure
10 Cal.3d
The
703.)
DeSousa.
reversal.
warranting
caused no prejudice
lesser included offense of theft
burglary-murder
and
robbery-murder
to
that
G. Failure
instruct
kill.
intent to
finding
a
required
circumstances
special
35
(1983)
Court
v.
theory
Superior
Defendant embraces the
of Carlos
felony-murder special
a
862],
672 P.2d
Cal.Rptr.
Cal.3d
[197
proof
requires
under the 1978 death
initiative
penalty
circumstance
trial,
was
the
intended
kill.
In this
(P. 153.)
pro-Carlos
burglary-
and
robbery-murder
in the instructions
the
defining
so advised
however,
prose-
objections,
circumstances. Over defense
murder special
killed
“intentionally
that defendant
separate special finding
cutor obtained a
information, to
III
a human
the offense
Count
being during
alleged
(Murder).”
wit: Violation of Section 187 of the Penal Code
finding
procedurally
Defendant
on several
that this
was
urges
grounds
relevant,
longer
Carlos. The
is no
satisfy
defective and did not
contention
however,
death
Carlos’s
that the 1978
holding
since we have overruled
felony-mur
for all
law includes a blanket intent-to-kill
penalty
requirement
1104, 1138-
43 Cal.3d
(1987)
der
circumstances.
Anderson
special
(People
be
kill need
P.2d
Intent to
1306].)
Cal.Rptr.
[240
where
only
circumstance
charged
felony-murder
for a
proved
special
the actual
abetter
and not
defendant was an aider and
to the homicide
here,
190.2,
Where,
is
the evidence
1147;
killer.
at
as
(Id.,
(b).)
see
subd.
p.
§
in the homicide
that defendant
killed or
not involved
either
personally
all,
at
(Id.,
issue.
court need not instruct on the intent-to-kill
1147-1148,
v. Flannel
Cal.3d
pp.
citing People
(1979)
[160
84, 603
1].)
P.2d
reasons,
necessary
For
was not
jury’s
finding
similar
intent-to-kill
now
Court has
States
satisfy
Eighth
Supreme
Amendment.
United
when
be exacted
may constitutionally
made clear
that the death
ours,
statute,
death-
which limits
circumstances
such as
warrant under
killed,
kill, or
felony
attempted
to those “who
eligible
actually
murderers
137, 150
481 U.S.
intended to kill. . . .”
v. Arizona
(Tison
127, 139,
Enmund v.
(italics added), construing
L.Ed.2d
107 S.Ct. 1676]
On the
3368].)
102 S.Ct.
V. Phase Issues A. Failure to allow television movie juror voir dire on effect of ” “The Song. Executioner’s that, trial, At the outset the court of the defense counsel advised verdict, he had Monday on the evening jury’s the preceding guilt phase movie, Exe “The witnessed second installment of a television two-part Gary cutioner’s which dramatized Gilmore’s 1977 execution Song,” counsel, being in Utah. firing squad to the film showed Gilmore According celebrity, treated as a an alcoholic receiving special hosting privileges, view, sug movie party just before the execution. In counsel’s matter, gested oppor that execution was not a serious and he requested tunity jurors to voir dire the on their the show. responses to about
The trial court declined. It noted “festive” nothing that there was execution, Moreover, said the the actual which was detail. depicted grim court, the first had focused (which missed) installment counsel conceded he was, a the “human on what “wonderful Gilmore thus person” emphasizing anyone no reason aspects” facing the death The court saw penalty. testimony jury Boyd While his accomplice, was instructed that and that was caution, theory therefore that presented should be viewed with a no instructions defendant homicide, felonies, guilty not underlying was of the or of and abetter. As as a mere aider ed, only killing, suggested the evidence he commit participated that if defendant at all in the personally. jury necessarily imply finding ted it Even if the that defendant verdicts do not a 376, 391, actually (see killed Cabana v. Bullock U.S. fn. 6 L.Ed.2d [88 689]), may Eighth finding purposes 106 S.Ct. we make Amendment. that ourselves for of the (Id., 386-387, 716-717, dis pp. pp. 720].) at not make the L.Ed.2d at Our statute does [88 principal any special circum tinction between and aider “element” of crime or and abetter an most, stance; felony-murder at it makes intent circumstance to kill an “element” of a //the noted,'an 190.2, Thus, only already aid (§ (b).) defendant was an aider and abetter. subd. as jury phase presented special er-and-abetter issue not be circumstance need to the at the where, here, Absent such capacity. as there is no substantial evidence defendant acted that evidence, jury process right defendant has no state-created whether due determination 387-388, 4].) actually (Cabana, supra, p. fn. pp. killed. 474 U.S. fn. 4 at L.Ed.2d may that might presented Nor defendant claim he had he known have different evidence beyond felony-murdér eligibility accomplice requires culpable for a state death mental fn. allowing (Cf., execution of the actual killer. Rose v. Clark 478 U.S. 460, 471-472, 106 observed, recently 3101].) concerns L.Ed.2d S.Ct. As we once theEnmund is that the dispelled, plausible interpretation in Carlos 190.2 noted are the most of section ex special (subd. (a)) requirement unless enumerated circumstances include no intent-to-kill therein, kill pressly required in “not the actual stated but that such intent is all cases for one Thus, (subd. (b)). (Anderson, pp. 1138-1148.) . . .” er Cal.3d at pre-Carlos notice in his trial that the and actual-killer distinction between aider-and-abetter might eligibility penalty. status affect his for the death responsibility. its gravity be misled about the jury believe the would you any if However, “that the court admonished expressly Song’ Executioner’s known as ‘The a certain television broadcast observed Gilmore, are you Gary death of one that dealt with the life and during any way brought up that. That is not to be totally disregard other juror.” or mentioned to deliberations have allowed trial court should
Defendant that the argument renews extrajudi- *33 of receipt sitting juror’s He that a subject. urges voir dire on this misconduct, is pre- that prejudice on the case is bearing cial information voir of sumed, Denial rebut the presumption. and that the must prosecution of the issues dire, asserts, him from a record making he prevented misconduct and prejudice. panel member of the any that juror
Defendant no affidavits presents penalty. deliberations on mentioned it actually during viewed the movie or film, that alone jurors Even if or more saw probably we assume that one oc misconduct misconduct. that no does not establish We have suggested information deliberately curs where set out to discover “jurors [do] pro television a regarding trial[, popular the issues at simply but] [watch] in a general of the trial subject to discuss the matter gram happen[s] 540, 557 way.” (Elsworth v. Beech Cal.3d Corp. (1984) Aircraft Motor Co. 630]; 691 P.2d see also Hasson v. Ford Cal.Rptr. 1171].)13 P.2d Cal.3d Cal.Rptr. 408-409 [185 course, in the modem it is to assume Short of of unrealistic sequestration, information outside can be isolated from all age already-sitting jurors on the entertainment attitudes affect their might conceivably which reference whatever made no Song” issues before them. “The Executioner’s case, an unbal it presented to defendant’s and there is no evidence that anced, in general. overly casual view of the death inflammatory, penalty Elsworth, that its mere 37 Cal.3d at We cannot conclude (Cf., supra, p. 558.) voir dire on television cause” appearance gave “good Fields, 190.4, (c); subd. unitary jury (see challenge guilt-penalty § Kaus, J.]; People 343-353; 35 Cal.3d at see also pp. p. opn. [conc. 13 Hasson, automaker, inadvertently attended liability juror products against In a a case case, involving a different liability products a a class which lecturer discussed another Elsworth, model, jurors had against alleged that two the same manufacturer. In it was Minutes,” is weekly range program of controversial watched “60 which addresses a wide Els safety related to the segment generally light matters sues. The at issue discussed aircraft might had jurors have passing here worth case and made a reference to the defendant. generally they issues greater warning confronted with than in those situations that would be Elsworth, however, juror must suggest that a case did not related to the before them. We general subject matter which watching a show the moment he discovers it concerns cease bears on his case. 929]) 426 P.2d 66 Cal.2d
Gonzales careful the court’s danger prejudice, remote Considering midtrial. No error harm. ample dispel potential admonishment was occurred.14 CYA sanctions destruction impose
B. Failure of defendant’s records. beginning the court at the
Defendant’s counsel advised destroyed. had been records from CYA that defendant’s penalty phase asserted, records, had hampered inability to discover the Counsel’s arising circumstances mitigating corroborate ability possible to discover and dismissal requested CYA Counsel experience. from defendant’s extensive denied. or other sanctions. The motion was the death penalty Director, West, that CYA trial CYA testified at the Pearl former *34 all formal conmit- A “master file” contained two files on each ward. kept sta- the ward’s about correspondence ment papers, probation reports, custody. West day-to-day the ward’s tus. A second file included records of ward at- a former routinely destroyed that such files were when reported on CYA’s records majority. It confirmed that stipulation tained was records and that defendant’s destroyed majority, former wards were upon for dismissal denied a motion again were thus not available. The court or other sanctions. the death destroyed improperly
Defendant renews his claim that the records were proceedings sanction is to bar further to his and that the prejudice, proper reasons, agree. For several we cannot seeking death penalty. nonmalicious, of discoverable if destruction improper Even de to a criminal could lead to material evidence favorable records which 28 (1980) v. Zamora may rights. (People fendant violate due process 88, 573, 12 (1974) v. Hitch 1361]; 615 P.2d Cal.Rptr. People Cal.3d 96 [167 641, 9, Court v. 361]; Superior 645 527 P.2d Pitchess Cal.Rptr. Cal.3d [117 531, 897, Cali 305]; 522 P.2d see 11 537-538 Cal.Rptr. Cal.3d (1974) [113 413, 420-421, 479, 485-488 L.Ed.2d (1984) v. Trombetta U.S. [81 fornia evidence, favorable duty The constitutional to 2528]).) preserve 104 S.Ct. however, basis to reasonable when the authorities have no is not violated a criminal defense. will have destroyed bearing believe that the materials note, might presented have Song” People voir dire about “The Executioner’s As the (See jury. People improper opportunity argue the case or indoctrinate an counsel with 317, 869]; People v. Crowe (1981) Cal.Rptr. 628 P.2d v. 29 Cal.3d Williams [174 193].) Cal.Rptr. 506 P.2d 8 Cal.3d 824 [106 Court re- Supreme the United States process For federal due purposes, Trombetta, ruled There the court supra. clear cently point made this evi- to preserve on the States duty imposes Constitution “[w]hatever dence, play be duty might expected must be limited to evidence that stan- To this meet role in the defense. significant suspect’s omitted.] [Fn. must both evidence materiality, omitted], dard of constitutional [citation the evidence value that was possess exculpatory apparent before be unable to would destroyed, and be such a nature that U.S. (467 means. . . .” by reasonably obtain available evidence comparable added.) 422], at L.Ed.2d at italics pp. p. rele that the possible are consistent with notion
California decisions have been must vance of materials to a criminal defense records other Thus, its progeny Hitch and reasonably before their destruction. apparent investigation in a criminal duty gathered established a evidence preserve (Hitch, Cal. 3d supra, where it guilt be material to or innocence. might also, 652; 26 Cal.3d p. e.g., see Nation 1051].) 604 P.2d Pitchess, is In officer this court concluded that peace where he acted in alleged victim of a criminal and the defendant asserts battery, force, citizen com- prior self-defense to counter excessive records of police discoverable. of excessive force the same officers are relevant and plaints filed, proper After (11 Cal.3d at Pitchess was and without pp. 537-539.) rec- authority, destroyed years’ Police several the Los Angeles Department *35 Zamora, held supra, ords of complaints against unsustained citizen officers. bat- alleging in case sanctions were a criminal subsequent appropriate Cal.3d tery (28 officers upon complaint destroyed. whose records had been that, city attorney’s at 96-99.) This court noted the pp. particular when destruction, office under authorized it knew the were discoverable records Pitchess.
In this v. Robinson regard, distinguished Zamora inappro Cal.App.3d 968 There were deemed Cal.Rptr. sanctions 328]. identity disclosed the priate jail for destruction of which have passes might Robinson battery room. The jail’s visiting witnesses to an alleged court “records” noted that were not intended as passes permanent out, use “routinely potential were without of their appreciation thrown (76 as a lead in a case.” discovery testimony anticipated to the or pending Zamora, 98, fn. 6.) 974; also 28 Cal.3d at Cal.App.3d p. p. see CYA duty to general preserve Here there nowas constitutional Indeed, records trials. relevance future adult criminal possible destroyed before long evidence files strongly defendant’s were suggests of the 1977 passage or 1978 death laws. CYA penalty officials had no reasonable ground to suspect that such records would be material to claim of “mitigating circumstances” in a penalty trial under these statutes.
Moreover, it appears destruction of the statutorily records was author- ized, and that Zamora sanctions accordingly (See are inappropriate. Cal.3d at 97-98; pp. see also City Sacramento v. Court Municipal (Pope) Cal.App.3d In 114].) accordance with the “clean-slate” and confidentiality policies of the Juvenile Court Law, Welfare and Institutions Code section 1763 as “The provides follows: authority shall written keep records of all examinations and of the conclu- sions predicated thereon and of all orders concerning the disposition treatment of every person under its control. years After five from the date on which the jurisdiction of the authority a ward is terminated authority may destroy such . records. . .”
Defendant first contends the files were not destroyed strict compliance with section since destruction occurred less than upon majority, years five after However, his release from CYA. not preju- diced thereby. If all, section 1763 permitted destruction of his records at destruction would have been proper their. time of his trial in this case.
More substantially, defendant claims not permit section 1763 did destruction of his daily files. He notes that the “records" governed section 1763 only include records of “examinations” and “orders” concern ing These, his disposition or treatment. he urges, only to the correspond file, “master” not the informal record of his daily progress.
We do not read the statute as as literally defendant suggests. “Examina- tion” in CYA includes the day-to-day behavior; observation of his authority has statutory duty to a ward keep study” “under continued evaluate his progress Code, toward release. & (Welf. 1765.) Inst. More- § over, “orders” for his necessarily treatment include results of day-to-day *36 observation within the institution. We think the intent was to Legislature’s permit evaluate, destruction of all files generated by CYA govern, which confinement, and record a treatment, former ward’s and release.15 15 Hence, accept we argument cannot general defendant’s that CYA violated the “destruc statute, tion of state records” (a) Government Code section 14755. subdivision of that Under law, destroyed state, record shall be disposed or agency “[n]o otherwise unless it is Department determined the director General the rec [of Services] administrative, ord has no further legal, Secretary or fiscal value and the of State has deter inappropriate mined that the record is preservation pur in the State Archives.” For this pose, exhibits, “record” or papers, “records” is maps, magnetic pa defined to include “all cards, per tapes, photographic prints, punched films and produced, re- other documents *37 Bonner, examining psychia- counsel, defense Later, Mr. defense personality with an antisocial premise that one trist, Aaron, about the Dr. ordinary life. The discipline but not under close impulses can control Well, capable of anyone physically Q. is following interchange occurred: “[U someone, harm, Mr. act, shoot were now to and if I a violent carrying out — granted Permission here, right now if shot him The Court: Strople, I — — By justified [fj The Court: Mr. Stro- might be That Q. Bonner: Mr. [fl ” defender, for the record. public is a ple *38 failure from the no to defendant Finally, we find prejudice verdict, jury that, guilt of the Defendant view urges sanctions. impose CYA dehumanizing testimony his own about be of suspicious would files, contends, important have provided daily might experiences; other from However, was presented credible evidence ample corroboration. emotional, dangers hardships, physical, sources which detailed the West, a In by particular, a CYA inmate. faced typically psychological, No re matters. Director, these detail on graphic former CYA testified occurred. versible error phase. trial by judge
C. Humorous remarks by judge the trial jest remarks made in objects Defendant to two against directed levity He claims the was during the penalty phase. bias, from the defense, and detracted to the the court’s suggested gravity of the issues. of, Podboy, a clinical Dr.
In the first instance the court asked complained defense, Boy for John you called if “we call psychologist [can] I had to do “Okay. yes, short.” When the witness said the court responded, sorry.” that. I’m counsel, Bonner, psychia- a defense examining Mr. Jbatei^defense
trist, Dr.AaTon, personality that one with an premise about antisocial The ordinary life. can control his under close impulses discipline but .Well, capable anyone is following interchange physically occurred: -Q. “[fl] someone, harm, Mr. act, if I shoot carrying out a violent were now to here, granted. if I Permission him Strople, right shot now—[fl] The Court: might By-Mr. justified—-[fl] —That be Q. Bonner:RC fl[] - defender, Strople public is a for the record.” __________ Hence, Counsel, course, objection made remarks. no any issue, cured timely have has waived since a admonition would & fn. 30 (1987) v. Miranda 44 Cal.3d potential prejudice. (People I, 576; at p. 30 Cal.3d 1127]; 744 P.2d Ramos supra, [241 Green, also, 27; Golden 27 Cal.3d at see Estate p. e.g., Francisco City San 962]; County Cal.2d P.2d Germ & 122].) P.2d Cal.App.2d event, Well-conceived challenges.
In we would defendant’s reject Obviously, trial. long, humor can relief tense judicial during be a welcome ceived, (Gov. physical or characteristics.” agency, regardless of form owned or used Code, 14741.) §
however, the court should refrain from joking jury remarks which the as might interpret a or denigrating particular attorney. We do not party condone instant references judge’s to the defender. But the re- public case, marks relatively mild; were brief in one defense counsel even instances, unfortunate, joined in the joke. These isolated of while fall short or intemperate judicial biased conduct which warrants reversal. D. Admission evidence other criminal at activity of of phase.
Defendant raises several to the challenges phase prosecution’s penalty evidence, which solely consisted of of activity by evidence other criminal defendant. He first urges that because he offered to to his stipulate convictions for the 1971 rapes robberies of Bernice N. and Paula N. and for assault deadly with a D. weapon against James the prosecution should not have been allowed to testimony by introduce the victims about the details of those crimes. rejected
We an identical claim in v. Gates 43 People (1987) Cal.3d at page Cal.Rptr. P.2d There we explained 301]. with dealing violent conduct it is not the of conviction is which “[w]hen fact in the probative penalty phase, but rather the of the defendant conduct gave which rise to the offense. Defendant’s contention have had merit might had the conduct, convictions involved nonviolent since the admission of such evidence strictly is limited subdivision (c) of section 190.3. But the conviction here involved violent conduct and were thus admissible pursuant 190.3, to subdivision of (b) section which introduction of all permits the evidence of violent crimes and does not require a conviction. omitted.] [Fn. (See People Balderas [(1985)] Cal.3d [144], 202-203 [222 184, 711 P.2d (Italics original.) 480].”
Defendant urges that admission testimony of underlying about the facts conviction for violent activity” “criminal allows the improperly prosecution beyond go “least adjudicated elements” of that offense. Admission evidence, asserts, such he raises the risk that will the capital penalty deem him prejudicially guilty greater than that for different crime which he was convicted.
However, subdivision (b) of section 190.3
any
expressly permits proof
violent
activity”
“criminal
regardless whether it led to prosecution
conviction,
as to
except
(Bald
offenses of which defendant was acquitted.
eras,
supra,
Cal.3d at
No
p. 201.)
“elements” are at issue
specific
except
that some violent criminal offense must exist.
41 Cal.3d
(Phillips, supra,
72; Boyd,
p.
Cal.3d at pp. 776-778.)
being
is not
conduct
violent criminal
belatedly
retried
to establish that his
(or
tried)
in the conviction
actually
beyond
included
those embodied
“elements”
allowing
no unfairness
previously suffered.
also fn.
There is
(See
IS,post.)
activity.”
to show the
the violent “criminal
circumstances of
event,
In
the violent
limiting
if defendant was concerned about
*40
consider,
instruc-
crimes the
he was entitled to
penalty jury might
request
not
tions on the
it. The court was
any
elements of
offenses
before
properly
required
(1985)
such
sua
v.
give
sponte. (People Davenport
instructions
Cal.3d
41 Cal.3d
710 P.2d
Cal.Rptr.
861];Phillips, supra,
68;
at p.
v. Tahl
People
Cal.Rptr.
Cal.2d
736-738 [56
Defendant involv- robbery also notes that the convictions rape N., Bernice ing involving N. and Paula and the 1978 assault conviction D., James were on that bargained pleas. Charges raped defendant Nancy robbed S. in Bernice N.- part bargain were dismissed as of the the case, Paula N. case. In the James D. with originally charged defendant was assault with intent murder; to commit the reduced to assault charge was with a deadly when James reluctance to weapon, apparently expressed testify.
Defendant urges activity” “criminal was the prior which subject of a plea bargain should be inadmissible at a subsequent penalty trial. He suggests that admission him to subject of such offenses would “adverse the sentencing consequences” beyond those to at the time agreed bargains were entered.
The case on which
Harvey
he relies for this
proposition,
Finally, defendant mounts a challenge to of James D.’s specific portions James, man, testimony about elderly defendant’s assault him. against gay explained that he met defendant an Advocate advertisement while through the latter was in prison. James feelings romantic for defendant developed and traveled frequently from Oakland to San Luis to visit him. The Obispo manner negotiat- to draw adverse inferences from the fact that defendant entered Here, said, pleas ed prosecutor other cases. “You’ll remember that the did go prison back to again, because of the Mr. got attack on Once a break which he [D.]. did not testify deserve. Mr. against Despite declined to the defendant at trial. what [][] [D.] *41 trial, [D.], the defendant bring testify had done to Mr. Mr. could not himself to at the [D.] [f] guilty So the pled felony deadly defendant weapon April to a assault with a in of 1979 and go prison.” did not back improper they to These remarks were for two reasons: commented adversely prior plea on a bargain, they testify, unwillingness and focused on James D.’s to which, strictly speaking, activity.” prior was not relevant to the circumstances of “criminal However, objection. counsel made no prejudice, Since an admonition have would cured Moreover, issue must be deemed waived as such. plausible while can see no we tactical reason incident, itself, failing object, to hardly this in grounds and of warrants reversal on ineffective assistance of counsel. 17 course, Of the state must process, place person accord due and it cannot a “twice... in jeopardy Const., Const., I, V; life (U.S. for the [of same offense. Cal. art. limb]” Amend. 15.) jeopardy The double process prevent (1) retrying and due § clauses the state from final guilt verdicts of (including greater offenses), (2) innocence lesser included and inclusive ex acting multiple offense, punishments (3) relitigating for the same purposes for criminal say finally resolved in prior (the proceeding defendant’s favor in a criminal “collateral facts estoppel” rule). (United 117, 328, States v. (1980) DiFrancesco 449 U.S. 127-128 L.Ed.2d [66 339, 426]; 410, 415 228, 234-235, 100 101 S.Ct. (1980) Illinois v. Vitale 447 U.S. L.Ed.2d [65 2260]; 436, 443-446 469, 475-477, 90 (1970) S.Ct. Ashe v. Swenson 397 U.S. L.Ed.2d S.Ct. [25 1189].) necessary corollary, may As a retry capi state the life-versus-death issue in a when, tal trial-type case after a proceeding, effectively “acquitted” the sentencer has the de 203, penalty. (Arizona fendant of the death Rumsey (1984) v. 467 U.S. 209-212 L.Ed.2d [81 164, 170-172, 2305]; 104 Bullington S.Ct. v. 451 444-446 Missouri U.S. [68 270, 282-283, L.Ed.2d 1852]; S.Ct. but 152- see Poland Arizona 476 U.S. 123, 130-133, 106 conclude, however, 1749].) L.Ed.2d placed S.Ct. is not [90 We that one jeopardy “twice in already for the same offense” when the has details misconduct which resulted in punishment, bargain conviction and pursuant plea or in dismissal a or for wit unavailability, presented ness proceeding separate appropri are in a later on the issue of the penalty ate subsequent for a (E.g., People (1979) Cal.App.3d offense. v. Johnson 357- view, Cal.Rptr. 150].) procedure proper, Such a is in our even if must defendant thereby (See, endure e.g., Coughlin (1976) the “ordeal” of a “trial.” second In re 16 Cal.3d [probation following acquit P.2d revocation criminal 249] tal].) capital sentencing jury The must have the most detailed relevant information about the jurors individual offender. It “gory prior would be anomalous if vi could hear the details” of charged, olent only crimes with which defendant had never been but could consider cold ab successfully. stracts of prosecuted conviction cases where defendant had if been Even estoppel” applies, points “collateral specific litigated rule defendant here to no in his facts necessarily prior trial which were proceedings. resolved his favor in criminal with release, live in Oakland that, would his defendant after plans two made so, Angeles to Los do but went did not as his son. Defendant adopted James fiancee, H. be his Diane with release, after both before and three-year During period D. The James money from sums of various gifts solicited and received $12,000, suggested evidence and the around value of these items totalled worker postal James was false pretenses. had been obtained under some means. and a man of modest visit, gave and James for an extended finally
Defendant came to Oakland the house on key to enter Defendant had used key him a to his house. the assault. night of assault leading to the up that the sordid events urges Defendant listed circumstance” any itself were irrelevant to specific “aggravating crimes evidence of nonviolent prior statute. In particular, suggests, indication defendant because there was no against James was inadmissible 190.3, (c).) subd. (§ had suffered for such offenses. felony convictions event, its any In Defendant failed to of this evidence. object the assault to show that admission was were entitled proper. *42 callous, a vul- against was vicious and since it was committed particularly over a long period. nerable victim defendant kindness great who had shown in con- may be shown activity” aggravation Violent “criminal presented text, the appropriate so that full jury deciding the has opportunity, of no in the admission to determine its seriousness. We find error penalty, James’ testimony.18 should
E. Failure adverse to instruct sua that no sponte inference be drawn at testify penalty phase. from failure defendant’s notes, As self-incrimi- against the Fifth Amendment privilege v. Smith (Estelle nation at as as the applies penalty guilt phase. well 359, 368-369, 1866].) 101 451 U.S. 462-463 S.Ct. (1981) L.Ed.2d [68 Hence, not to for his decision urges, may he a defendant not be penalized 380 U.S. v. testify (see at the penalty phase Griffin California 106, 109, court must therefore 1229]), 85 S.Ct. and the L.Ed.2d infer- that it should not draw adverse jury instruct the sua penalty sponte Otherwise, jury suggests, stand. he ences from his failure to take the reasons, erred in admit reject argument that the trial court For similar defendant’s we center, robbery care with ting testimony rape Bernice N. occurred a child that the and Nancy synagogue. robbery in a present, rape S. occurred the victim’s son and that the and defendant, testify did at the
may that mute one who especially conclude lacks guilt remorse for his crime. phase, warning rule is that instructions
The well-established California need be only given from a defendant’s silence against adverse inferences 843, Cal.2d upon Gardner request. (People United States considering intervening After 575].) P.2d decisions, at the application Court we affirmed Gardner’s Supreme recently (Gates, 1208-1209; at pp. of a trial. 43 Cal.3d penalty supra, phase capital Miranda, see 3d we conclude 107.) Accordingly, also Cal. at p. in the duty by trial such an instruction failing give court breached no absence of a request. defense
F as to phase Failure to reinstruct jury penalty principles generally its deliberations. affecting repeat, he was the court’s failure to prejudiced
Defendant urges sua at the phase at the all the instructions sponte, penalty phase given guilt In concerning par deliberations. principles generally applicable ticular, the jury absence of instructions left without suggests, the such any on the issue of credibility framework witnesses assessing “arbitrary and deliberations. penalty allowed and capricous” penalty that, claim told in deter- specious. The is The was penalty jury expressly sentence, it which has been mining should “consider all of evidence in- any may received as be hereafter during you of this part except trial structed.” the list of (CALJIC 8.84.1.) aggravat- No. It was with provided ing (ibid.) factors relevant to the determination mitigating neither any not to factor. aggravating Though cautioned consider unlisted nor so it was fact relied statute court decisions advised require, doubt, on for sentence must be a reasonable aggravation proved beyond (1979 rev.).) reasonable doubt defined. CALJIC No. 2.90 (See *43 and jury testimony stipu- was further instructed on the of principles expert lations, There is and it was not the judge. admonished to take cues from no to the realistic misled how evaluate possibility jurors were about witnesses, instruc- testimony general of penalty or that absence phase tions deliberations. arbitrary at the induced and penalty phase capricious “ignore G. to guilt on instructions penalty phase phase Effect give or to consequences” disregard pity; and sympathy failure at penalty or instructions “expanded (k)” “pro-sympathy” factor
phase. in its revision) 1.00 gave (1979 At the court CALJIC No. guilt phase, be jury this instruction “not entirety. Among things, other cautions [to] him”; it further against for a defendant or prejudice influenced pity sentiment, sympathy, conjecture, mere swayed by tells “not be jurors [to] and admonishes public feeling,” prejudice, public opinion, passion, of what just regardless “a verdict both have the to parties right expect may of such verdict be.” consequences not was consequences and
The instruction to ignore sympathy, pity, De- countermanded. at the Nor was it repeated penalty expressly phase. rely they were jurors as the assumed urges penalty fendant that insofar instructions, sentence. the issue of on guilt prejudiced was phase “no-sympa (1) We several where judgments reversed death previously received, jury also thy” (2) instruction at the given penalty phase, was elaboration, instruction) (k) unadorned factor (the without an instruction gravity [capital] consider evidence which “extenuates mitigating CALJIC, 190.3, 190.3, No. former (§ (j); crime" subd. former subd. (k); § 8.84.1, substantial defendant introduced (k), added), (3) subd. italics cases, we In such general background. evidence about his character and reasoned, under the jury there was intolerable about whether ambiguity all its to consider duty stood under the Amendment power Eighth less than evidence on behalf of “sympathetic” proffered penalty 512, 537-538 Cal.Rptr. death. v. Brown 40 Cal.3d (E.g., People (1985) [230 163, 834, 726 P.2d v. 36 Cal.3d 516]; People Lanphear [203 878- v. Cal.3d Cal.Rptr. 1081]; Easley (1983) P.2d People v. 813]; see Eddings 671 P.2d Oklahoma 1, 12, conc. 869], opn. U.S. 102 S.Ct. L.Ed.2d O’Connor, J., at p. 119.)19 Brown,
The United States certiorari granted Court Supreme a “no-sympa 40 Cal. effect of 3d to consider the constitutional thy” admonition on in a case. capital deliberations does sympathy court has concluded that a “mere” warning ignore However, jury where the offend the Amendment in and of itself.20 Eighth (k) unadorned factor was cautioned and also received an against sympathy instruction, exam must be arguments instructions and penalty phase informed ined as a whole “adequately to determine whether the evidence mitigating ... of its to consider all of the responsibility clear, Easley, that directed in 19CALJIC No. 8.84.1 has since been revised to make as we *44 “any ‘aspect mitigating (k)” . . . of evidence to be considered under “factor includes [the] less proffers a basis for sentence defendant’s character or record . . . that the defendant as 8.84.1, rev.).) 10; (k) (4th (P. than . .” subd. ed. 1984 death.’. fn. see CALJIC No. token, interpre By “consequences” might be ignore the instruction same insofar as an sympathy” (People v. by disregard light ted a sentencer “in the as an admonition to same Brown, 7), forbid it. p. 40 Cal.3d at fn. the Constitution does not introduced the . . . v. 479 U.S. (California Brown [defendant] 934, 943, O’Connor, J.].) L.Ed.2d 107 S.Ct. of opn. 837] [conc. here, that the Performing analysis jury such an we conclude was informed. The did receive an instruction in the literal terms adequately jury However, (k). of factor it also heard that a circumstance is one mitigating which, crime, may it does not excuse or the be consid though justify capital “in mercy reducing ered ... as the extenuating degree fairness Moreover, moral the trial court the fol culpability.” (Italics added.) gave fac lowing special penalty “Mitigating instruction defendant: requested considered, tors are Anything Mitigat unlimited. should be mitigating [fl] in some of the ing provided merely factors the instructions are examples you may factors take into account in not to a death deciding impose sentence.”
Finally, the instructions because no-sympathy ignore-consequences of which defendant their effect only guilt occurred at the complains phase, Rodriguez on penalty deliberations must be deemed attenuated. (People (1986) Cal.3d 726 P.2d Under all the 113].) instructions, jury any surely weigh gener- must have understood it could al evidence mem- mitigating by defendant’s witnesses and presented expert family. bers of his
Moreover, the made no prosecutor argument exploit effort potential ambiguity. While that defendant’s evidence was urging mitigating death, insufficient to tip suggested balance never against prosecutor it was legally irrelevant to the determination.21 Defense counsel argued length, objection, without that defendant’s difficult childhood and dead, history of re- emotionally making incarceration had rendered him venge meaningless. adequately We conclude the instructions and argument advised the jury constitutionally mitigating relevant scope evidence.22 Rodriguez, affirmatively prosecutor principle In contrast with did not reinforce mitigating technique,
that “all he ran down the Employing evidence is relevant.” a familiar factors, statutory aggravating mitigating bearing each. arguing list of the evidence (k), gravity When he reached factor he did refer to the of the crime” lan “extenuates instruction, guage urge mitigating of the statute and evidence but did not this excluded directly capital which was not related to the offense. 22Moreover, light mitigating of the court’s instructions circumstances were “unlim only “examples,” reject ited” and that those listed the instructions were we defendant’s only improperly permitted contention that the to consider his disturbed mental state “extreme,” (d) if the disturbance was as set forth in of section 190.3 and former subdivision CALJIC 8.84.1. No. *45 ” law; sentencing the 1978 “Mandatory H. failure of feature ” doubt. reasonable “beyond proper that death must be instruct found jury that the trial penalty instruction at Defendant attacks the circumstances aggravating if it finds that the death impose “shall” A death 8.84.2; 190.3.) see No. former (CALJIC, “outweigh” mitigating. § by a sentencer if imposed Amendment Eighth is invalid under the judgment to determine ultimate moral responsibility that believed it lacked the v. (Caldwell the individual circumstances. under all appropriate penalty 231, 239, 105 S.Ct. L.Ed.2d 472 U.S. Mississippi (1985) [86 Brown, 540-544.) 40 Cal.3d at pp. v. 2633]; People supra, instruction, explanation further given without The “shall/outweigh” this cases, misunderstanding leaves some 1978-law room pre-Brown “weighing” mean that the be construed to If not it could regard. explained, and, once (2) completed, rather than normative (1) is mechanical process views on of the jurors’ automatically penalty regardless determines the 250, 274-275 v. 43 Cal. 3d Myers (1987) appropriateness. (People 1222, 1276- v. Allen 42 Cal.3d 698]; (1986) 729 P.2d Cal.Rptr. the instructions P.2d We examine 115].) whether, overall, was jury each such case to determine argument (People its sentencing responsibility. informed of the nature of adequately Brown, fn. 17.) Cal. 3d at p. its role. have understood jury
Our examination here indicates the must instruction, received additional While it a it also “shall/outweigh” heard noted, First, it already as special instructions defendant. requested be by statute and must strictly learned that limited aggravating factors were doubt, “unlimit- a factors were beyond mitigating reasonable while proved ed” and could be mere substantial evidence. established it weight
The it could whatever jury assign was also told that (1) factor, could deemed factor (2) single mitigating to each that appropriate all “outweigh[ed]” life rather if found it justify than death numbers, factors, relative not relative aggravating weight, that crucial, factors mitigating counting aggravating mere was improper.23 weight you assign feel special provided: “You are entitled to whatever instructions justi may fl|] Any mitigating standing be sufficient to
appropriate to each factor. factor alone single weight mi fy parole you such possibility a sentence of life without if find weight of tigating weight aggravating combined outweighs It is the all [U] factor factors. factors, merely the num are not to count not their number is determinative. You which suggestion, Contrary (Italics added.) to defendant’s . . .” ber of factors each side. proposed by adding phrase to defendant’s prejudicial error the italicized court did not create under the 1978 suggest, properly, that purpose The obvious and effect is to instruction.
762
Furthermore, Myers, in the instant argument unlike the prosecutor’s remarks, whole, convey not the that prosecutor’s impression viewed as did the under the indi- jurors’ personal views about the “appropriate” penalty circumstances vidual irrelevant. he a contention that the press were Nor did its jury by was law to the death reserva- required impose penalty, despite mitiga- tions about if it found that appropriateness, aggravation outweighed at one jury tion. The did resort to a scale motif and did tell the prosecutor that them the and point “[y]ou just [i.e., aggravating mitigating balance However, tell he made clear from and those scales will it.” circumstances] the shall fit the jury’s job outset that the was to see that “the punishment factors, In crime.” what to the individual deciding weights assign noted, jurors you the should consider think are most things impor- “what added.) tant in what is in case.” judging (Italics this appropriate statutory After the their relative listing arguing various factors the have to weights, argument urging: concluded his prosecutor “[W]e society, they let these when they against know that when strike people man, brutalize their That’s the order fellow severe will follow. punishment society.” of civilized “if in this case is not suggested aggravation He the sufficient to have no warrant the of the death then we imposition penalty, [i.e., death Yet he “I to do this vote penalty.” you cautioned that do not ask for the death was that penalty] The overall thrust of lightly.” argument death was the crimes just for defendant’s “appropriate punishment” and that it was the Defendant’s jury’s solemn so to decide.24 responsibility urged counsel that all but that was aggravated, revenge cases are capital useless and mercy justified background. of defendant’s difficult light circumstances, Under all jury these are the was adequately we convinced informed about the scope sentencing responsibility. of its be
Defendant also claims the must told penalty jury specifically that the death beyond cannot be unless found penalty appropriate imposed reasonable doubt. We have two 1977- rejected challenge the identical (Jackson, law cases 315-318 318-319 opn.], Cal.3d at supra, pp. [plur. Newman, L.Ed.2d opn. J.], cert. den. 450 U.S. [conc. Frierson, opn.], 101 S.Ct. 176-184 1750]; [plur. Cal.3d at supra, pp. scheme, may determining sentencing jury disregard aggravating the the circumstances Brown, 544-545, 15.) appropriate penalty. (See People pp. & fn. 40 Cal.3d at say prosecutor argument people this state did near conclusion of his that “[t]he you aggravation have determined this have this that the that for crime and where amount context, appropriate (Italics added.) jury just punishment penalty.” is the death In reasonably responsibility implication could not construe this remark as an that the ultimate law, lay determining “people” penalty rath appropriate with the death jury merely suggested er than on the factors with the itself. It that after fair deliberation only penalty, conclude deemed relevant the state to the determination of could appropriate death was the sentence. law Mosk, recently as to and more J.]), opn. [conc. 777-779). 42 Cal.3d at (Rodriguez, supra, pp. *47 as crime charged
I. “Double-counting” circumstances of of (b) (a) section subdivisions and aggravating under both of factors 190.3, as crimes felony and convictions” violent “prior of (b) (c). and under both subdivisions aggravating factors notes, aggra- to consider in among jury As defendant other factors the is circumstances of mitigation “(a) vation or under 190.3 are section [t]he and for which in the proceeding crime the defendant convicted present . . “(b) existence of found be true any circumstances special [t]he by the which involved activity or absence of criminal presence or threat implied the use or use of force or violence or the attempted express violence,” any or absence of prior to use force and “(c) presence [t]he that, construed, lan- felony literally . . .” Defendant this urges conviction. allows the to count the violent the current guage jury circumstances crime as and (a) factors under both subdivisions aggravating (b). agree
We or vio activity [involving] term “criminal force as used (b) lence” in subdivision is limited to other than the imme conduct being diate circumstances for which the death is penalty contemplated. (Miranda, 44 Cal. 3d at supra, 105-106.) Instructions future cases pp. explain should that the violent described in do (b) crimes subdivision (Id., 28; fn. include the circumstances of the offense at p. itself. capital cf., Rodriguez, 787.) Cal. 3d p.
However, or cur- we think in the of the statute ambiguity language rent rarely argu- instructions will have caused Absent prejudice. improper ment, jurors unlikely to crime give are the circumstances of the current weight they in the greater penalty determination because simply appear be included in separate statutory two categories “aggravation.” the prosecutor
Here did not he ameliorated it. As any ambiguity; exploit practice, is common he each statuto- argument by discussing structured his A,” he re- ry circumstance” in turn. “factor “aggravating with Starting guilt burglary, robbery, viewed evidence about the murder phase remarks, Anthony DeSousa. he off At conclusion of these “check[ed] ‘A* as an factor” his to the next factor. aggravating and turned attention factor, “B,” said, He This (Italics added.) “deals with violence.” past crimes, intro- began commentary then about defendant’s violent “past” circumstances, at the is penalty duced Under these there no realistic phase. exclusivity of subdi- possibility was confused about mutual visions (a) (b). “overlap” a similar improper
Defendant next contends that suffered prior evidence that defendant phase “inflation” occur when as two is to be considered felony convictions for violent crimes allowed factors, activity) criminal (b) (violent under subdivision aggravating once disagree. We felony convictions). and again (c) (prior under subdivision of evidence at the allows presentation other section 190.3 Among things, whether or not or convictions “any felony conviction penalty phase prior criminal and of “other [they] (italics added) a crime of violence” involved activity” as “Criminal activity” (Italics added.) force or violence. involving is that The inference used the section “does not conviction.” require *48 felony resulted in a whether or not it activity” violent “criminal is admissible (Balderas, 201.) 41 Cal.3d at p. conviction. supra, in “prior did also result a activity” by If the defendant violent “criminal conviction,” statutory why no reason the felony prosecutor there seems incident for and when the (b) (c) presenting must elect between subdivisions Balderas, in (b) As “subdivisions purposes explained we aggravation. in all allows (b) of section 190.3 Subdivision (c) separate purposes. have for violence. criminality propensity evidence of violent to show defendant’s to show felony Subdivision in nonviolent!25! ‘convictions’ (c) allows ‘prior’ it criminality—that that the offense the culmination of habitual capital was omit- was undeterred criminal sanctions. community’s previous [Fn. (41 added.) Cal.3d at last italics p. ted.]” in a considerations coexist entirely These distinct and relevant equally is jury also involved a violent crime. prior felony conviction which both an for its relevance under therefore entitled to evaluate such incident a in the statute that (c). Nothing suggests subdivision and subdivision (b) under aggravation only be prior felony may presented violent conviction one or the other of the subdivisions. reasons, of a that such dual consideration
For similar we are persuaded felony conviction” does activity” violent “criminal led to a “prior which circum- aggravating inflation of raise constitutional concerns about artificial Harris, 64. We agree stances as discussed in 36 Cal.3d at page same aggravation individual criminal act cannot be counted twice However, consider- separate no obstacle to we see constitutional purpose. determination, even when ation of distinct of the properly aspects penalty only way as a shorthand in Balderas intended 25This use of the word “nonviolent” activity,” “criminal distinguish felonyconviction language 190.3 from violent in section noted, felony prior expressly allows require which “does not a conviction.” As the statute they violent crimes. convictions to be “whether or not” involved considered reject in a incident. We defendant’s single those to coexist aspects happen contention.26 “Double-counting” burglary-murder robbery-murder
J at aggravating circumstances as criminal special factors phase. lists (a) aggravating
Subdivision of section 190.3 as an circumstance found to be “the existence of circumstances penalty phase special trial, guilt guilt true” at the trial. At defendant’s found as separate circumstances DeSousa’s murder occurred in the course of a special 190.2, robbery (§ (id., subd. and a subd. (a)(17)(i)) burglary that, (a)(17)(vii)). robbery Defendant since the urges burglary intent, arose from “indivisible” single criminal conduct with criminal robbery and circumstances each be burglary special could not considered 190.3, distinct aggravating factor at the under section subdi penalty phase vision (a). concede,
As the defendant’s contention finds support plu- *49 Harris, in rality The Harris opinion supra. reasoned that where the plurality defendant has committed a a burglary and murder to facilitate the same
robbery, robbery “the and burglary necessarily circumstances are special they because describe overlapping virtually the same conduct. The use in the circumstance penalty phase of both these special thus allegations artificially inflates the of from particular strays circumstances the crime and States mandate that the state ‘tailor and Supreme [United Court’s] its law in a manner that apply arbitrary avoids the infliction capricious 420, of the death penalty.’ (Godfrey Georgia 446 428 (1980) p. U.S. at [64 398, 406, L.Ed.2d at 100 S.Ct. p. 1759].) The that the [high requires court] capital-sentencing procedure jury’s must be one that and focuses the ‘guides objective consideration of the particularized circumstances of the individual offense and the individual offender a of before it can sentence death.’ impose v. Texas (Jurek U.S. at 273-274 L.Ed.2d at pp. p. that, plurality The issue here is distinct from that addressed in Harris. There a concluded single felony, “single a murder when involves more than one other all committed in a course intent,” any felony-murder of resulting multiple spe conduct” with the “same criminal 190.2, (see (a)) may only aggravation cial circumstances subd. be once in at the counted § 190.3, penalty phase “special (See (a).) as a found to be true.” subd. [circumstance] § plurality argued separate penalty phase Harris consideration at the of each of the multi ple special artificially aggravating circumstances such a case would inflate the factors double-counting single] aspect defendant’s crime” and would constitute a form of “[a multiple punishment analogous (36 prohibited pp. 62-67.) to that 654. section Cal.3d at discussion, plurality’s reasoning (see post), ap We find the Harris too broad but doubt it we hand, any plies separate penalty here in event. When two issues—violence on the and fel one incident, ony presented by single separate recidivism on the other—are consideration each interest cannot be deemed “artificial” or “inflated.” jury system 96 S.Ct. That is not met where 2950].) requirement to be more than
considers the same act or an indivisible course of conduct 63.) one circumstance.” Cal.3d at special (36 p.
Moreover, consideration of each such suggested, plurality separate circumstance at the would violate phase “overlapping” special penalty double punishment. California’s principles underlying prohibition “[t]he (Id., 654,27 may . . .” be sentenced for Under section a defendant p. 64.) “indivisible” course of only one of a series of offenses out of an arising criminal v. Beamon objective. (People conduct with a criminal single Thus, Harris 905].) Cal.3d 504 P.2d thq concluded, jury may in a case if the plurality capital section is violated to each individual give aggravating weight at independent penalty phase offense of conduct. arising (Harris, supra, from such “indivisible” course 64-65.) Cal.3d at pp. may jury
Insofar as the Harris that the suggesting plurality consider, any form, felony leading the existence of more than one murder, 190.3, we find its Section subdi- capital reasoning unpersuasive. vision “the of the (a), jury directs the to consider circumstances” generally crime. if capital special Even the additional “and the existence phrase missing, sentencing circumstances found to be true” was [previously] led to jury statutorily would be entitled to evaluate all the conduct which the capital conviction.
Indeed, the Harris obvious of the propriety pen- conceded “the plurality alty that it (i.e., the circumstances of the murder occurred considering etc.; torture; in the course of a that it involved burglary, robbery, kidnaping, *50 Cal.3d at There (36 p. 61.) the victim was and so . . poisoned, on), seems no consideration statutory jurors’ general to the impediment penalty 190.2, of the also com- (a)(17)(i)) facts that a robber-murderer subd. (see § (a)(17)(vii)), mitted a see subd. burglary (id., access to the victim gain (a)(19)) the victim was see subd. after the (id., murdered poison killer if had lain in That would be so even none (id., (a)(15)). wait see subd. of these facts circumstances.” had been and as alleged proved “special
Nor does such Re problems. consideration raise constitutional cent United States Court make clear that a sen Supreme capital decisions discretion, scheme channels and focuses the sentencer’s tencing properly arbitrary thus avoiding Eighth prohibition Amendment’s 27 ways provides: punishable in different Section 654 “An act or omission which is made may provisions, provisions punished different under either of such but no of this code be one; punished acquittal case and sentence under can it be under more than or conviction prosecution either a other.” one bars for the same act or omissior under
767 means of distin- a “principled” if it (1) provides death capricious judgments, the death not candidates for are and are murderers who guishing between offense particular of the individualized consideration (2) assures penalty (1984) v. Harris Pulley (See sentence is imposed. and offender before a death v. 29, 42-45, 37, 871]; 104 S.Ct. 53-54 465 U.S. L.Ed.2d [79 California 1171, 1185, 3446]; 103 S.Ct. L.Ed.2d 463 U.S. 1008 (1983) Ramos [77 249-252, L.Ed.2d Zant v. 462 U.S. Stephens (1983) [77 2733].) 103 S.Ct. of retri- course, state legitimate goals serve the
Of
a death sentence must
Thus,
person-
bution or deterrence.
it “must be tailored
defendant’s]
[the
In for the state to legitimate our it is more deserv mine that a murderer is more and thus death-eligible culpable, death, additional if he the victim but committed an ing only robbed act, robbery and facilitate the felonious order to separate burglary, bur integrity; Robbery murder. involves an assaultive invasion of personal Society may deem invasion of the of the home. glary separate sanctity to the serious violation of each of these distinct interests relevant separately ness of a crime.28 capital
Moreover, mani employ principles the 1977 and 1978 death laws 654. For festly at odds with from section sentencing rules derived robbery, where a is to facilitate burglary or a murder committed example, statutes section 654 terms under prevents multiple separate separate each such “indivisible” offense. Smith (E.g., People v. Lowe 43]; 908 912 Cal.App.3d hand, the death On the other Cal.App.3d Cal.Rptr. 699].) *51 28 proposition the plurality support The Harris cited three from other states to cases the issue “overlapping” special allegations charged be or considered on circumstance cannot none, however, separate penalty. “overlapping” In at issue focus did the circumstances single defendant; they language the criminal culpable simply acts of the restated in different objective (E.g., v. 298 N.C. from which the murder arose. State Goodman 569, alleged as “avoid during flight police; special circumstances S.E.2d from 587] [murder laws”]; ing “hinderpng] disruptpng]. . . enforcement preventing lawful arrest” and or [robbery-murder pecuniary for (Ala. 1978) and murder Cook v. State 369 So.2d (Fla. 1976) [same].) gain]; v. Provence State So.2d scheme of circumstances” integrated “special statutes penalty provide most serious offense—a which the for the single appropriate punishment “indivisible” acts by just first murder—is such degree expressly influenced murderer degree render a first offenses. These circumstances” “special “existence,” as all as well eligible for death or life without and their parole, crime, into account under the “circumstances” of the must be taken capital 190.3, is chosen.29 section subdivision the actual (a), penalty when course, entire circum- Section does not obviate the “special they diverge, To the extent stances” scheme of the death statutes. penalty 190.3, 654. Rose (See section the more must over section specific, prevail 505].) State Despite 19 Cal.2d P.2d of California obviously degree section allows the for a first penalty section 190.3 murder “indivisible” offenses. No to be enhanced reference to other offenses to be why reason then section 654 all such other appears requires 190.3, Section considered as but one for of choice of purposes penalty. contrary by jury (a), expressly suggests directing penalty subdivision as the to consider all the “circumstances” of the crime as well capital . .” any (Italics added.) “existence of circumstances . . special Nor can section 190.3 be 654. The harmony Legisla- read with section clearly ture of the capital that the individual circumstances contemplated connection therewith—be offense—including lesser offenses committed above, relevant burgla- to the ultimate be As noted punishment imposed. interests, ry and thus robbery legitimate- invade societal and could separate ly be We out in the treatment. singled aggravating statute separate jury therefore capital penalty conclude that section 654 does not preclude from in the of both a considering that the murder was committed course robbery and a burglary. in the robbery may weighed
Of course the and the not each be burglary exactly determination more once for the same penalty purpose. than in this literal a theoretical language (a) problem of subdivision presents it tells the to consider the “circumstances” of respect, jury since Since any statutory crime and attendant circumstances.” capital “special former, no instructions jury given clarifying latter are a subset of the also conceivably “spe- double-count “circumstances” which were might trial court should admon- cial circumstances.” On defendant’s request, ish the jury not to do so. remote,
However, seems and we are of actual possibility prejudice above, that it was not realized here. As discussed persuaded reason, ag robbery burglary as premise of both the and the For this the dissent’s that use 654 must gravating punishment” proscribed section factors constitutes a form of “double fail at the outset. *52 validly consider fully aware of the facts of the DeSousa and could homicide sense, unlikely them in it was deciding penalty. Exercising common penalty believe it twice on the “weigh” special should each circumstance “scale.” exploit any ambiguity; argument did not prosecutor ” “factor ‘A’ the brutal nature of the crimes simply emphasized and callous against grounds DeSousa. We find no for reversal. ” “necessarily
K. that is not mitigating Instruction absence of factor aggravating factor. that penalty At the instruction phase, defendant offered “[t]he statutory absence of a aggravating factor does not constitute an mitigating factor.” The court modified instruction the “necessar by inserting the word ily” between “not” and “constitute.” notes,
As held that we have the mere absence of evidence of a statutory factor is itself a mitigating aggravation. (Rodriguez, factor in at supra, pp. 789-790; Cal.3d Davenport, Cal.3d at supra, p. [plur. opn.].) Defendant’s proffered instruction correct of this was a statement modified, however, As principle. it suggested jury that while the was not required factor, to find in aggravation the absence of a it mitigating could do so. Such an contrary is implication Rodriguez and Davenport, supra. both circumstances, however,
Under all the jury the could not have been misled. The instructions as a whole that made clear factors aggravating statute, doubt, were strictly limited must be beyond a proved reasonable hand, and should be considered “if only On the applicable.” other instructions that specified could consider mitigating jurors factors “in “unlimited,” not to deciding a death impose sentence” were that relevant, mercy” “fairness and were jury assign any that could factors, it deemed “weights” to the appropriate and that a single various mitigating factor could all outweigh aggravating factors the life-death balance. noted,
As we have these instructions gave the correct that the impression death should not be if imposed jury believed own stan- its dards that the evidence did not warrant A punishment. properly advised about the broad of its discretion scope sentencing unlikely is conclude that the absence of unusual as such factors “extreme” emotional disturbance, consent, victim or reasonable belief moral justification 190.3, (§ (d), (e), (f); subds. see Cal.3d is Davenport, p. 289) entitled to significant aggravating weight.
Moreover, prosecutor did not inference in exploit any the modified instruction absence of be mitigating might factor considered *53 mitigation any category that the absence of argued He never
aggravation. mitigating While did note several factor. aggravating itself if this form it argument, factors have indicated that were we inapplicable, v. Ghent there, Rodriguez, unobjectionable. (See supra; People is stops see 1250]; 739 P.2d also Cal.3d discussion, post.) context, challenged
In cannot the was misled the jury we believe reversal judgment. instruction. We see no basis for of the penalty mitigating L. to to delete instructional Refusal reference factors evidence. presented by instructions, defense penalty phase discussion of
During proposed statutory aggravating the the setting counsel instructions forth argued as to factors mitigating factors should delete reference mitigating (victim’s which no included factors (e) evidence had been These presented. in moral consent), justification), (g) or belief participation (f) (defendant’s (extreme (i) (defendant’s age), (j) duress or domination another), The mere minor court refused (defendant participant). as accomplice delete the “absent” factors. mitigating here, disclose, but,
Defendant renews his as our recent cases contention jury the trial 8.84.1 court’s action was CALJIC No. advises proper. Moreover, sentenc- weigh particular only jury’s factor “if applicable.” about ing is it the factors guided by advising “regarding discretion best State, society, crime and the organized defendant that the representing (Gregg, supra, deems decision.” particularly sentencing relevant to the not consid- U.S. at So as factor is p. 192.) long the absence a particular discussion, ered a is entitled to aggravation (see ante), factor in view, which, in the would know that crime lacks factors state’s certain make it a than other offenses candidate for more lenient treatment Thus, 289.) same 41 Cal.3d at general (See p. character. Davenport, supra, mitigat- we have held reference to “absent” consistently that instructional Ghent, 104-105; pp. factors 44 Cal.3d at ing (Miranda, supra, is permissible. No 776-777.) appears. Cal.3d error pp. (e) M. 190.4 motion. Section subdivision footnote, In standards the trial court incorrect urges applied of the death for modification when the automatic motion deciding post-trial 190.4, suggestions claim from the court’s (§ (e).) verdict. subd. stems of “the gravity that it no which could find circumstances extenuated trial mean the Defendant these comments to [capital] interprets crime.” *54 court not to all duty pre- did understand its consider evidence mitigating defendant, sented not to whether or related offense. capital construction, however, We court itself had reject defendant’s since the In expressly jury instructed the that factors were “unlimited.” mitigating context, only the court’s all reasonable finding “beyond remarks imply was doubt” that character and evidence proffered background defendant’s by his outweighed aggravated” “great record of violence” “exceptionally callousness, and the . . “high cruelty, . viciousness” of the DeSousa and murder. No error appears.
N. review. Proportionality Eighth
Defendant concedes that the
Amendment
this
require
does
court
to conduct “intercase”
examination
proportionality review—an
whether imposition of the death
case
penalty
disproportionate
his
was
the penalties
persons
on other
have
imposed
who
committed similar
(Pulley,
offenses.
The
was
sentencing jury
fully
of the
apprised
bearing
numerous factors
for,
deserved,
whether defendant
eligible
was
death penalty.
validly
considered defendant’s long history of violent criminali-
ty
felony
offenses. His own evidence at the penalty phase suggested
primarily
already
that an
antisocial
had
personality
been further hardened
was,
by years
course,
of incarceration. There
evidence
that defendant
sometimes
cooperative prisoner and had
exhibited kindness and concern
family.
court,
members of his
But
decisions
this
nothing
prior
or
courts,
constitutionally dispro-
the federal
is
suggests
his punishment
“the offense”
“the offender.”
portionate
equal
denied
urges
pro
Defendant also
defendants are
capital
statute,
unless they
tection
receive the benefits of the
sentence”
“disparate
Allen,
We
argument
section
subdivision
the identical
(f).
rejected
VI. Conclusion which, combination, prejudice We find no in caused singly errors or the Accordingly, or warranting guilt reversal of the determinations. penalty is judgment affirmed in its entirety.
Lucas, J., Kaufman, J., Mosk, J., Panelli, J., J., con- C. Arguelles, and curred. however,
BROUSSARD, J. I with concur in judgment. disagree, I the declares, in views we contrary the to the language majority opinion which 782, 36, Cal.Rptr. v. Harris expressed (1984) Cal.3d People [201 course of con- 433], 679 P.2d that two felonies from an indivisible arising may penalty be the duct as circumstances weighed separate aggravating jury.
In cases California death this court has to construe the past pains taken statutes factors aggravating to avoid penalty duplicative overlapping Harris, because, the “artificially as inflates we said in of such factors use States strays circumstances of the crime and from particular [United its law in a ‘tailor apply mandate the state and Supreme Court’s] of the death arbitrary manner that avoids the infliction capricious 420, L.Ed.2d Georgia (Godfrey (1980) p.428 v. U.S. at penalty.’ [64 406, 398, Court p. 1759].) requires at 100 S.Ct. United States Supreme and focuses that the be one that capital-sentencing procedure ‘guides must of the objective circumstances jury’s consideration of the particular a sen- it can impose individual offense and the individual offender before 262, U.S. at (Jurek pp. tence of death.’ v. Texas (1976) [49 system in a met 2950].) L.Ed.2d 96 S.Ct. That is not requirement of conduct to the same or an indivisible course where considers act 63.) (36 p. more than one circumstance.” Cal.3d special be robbery that when in Harris held opinion For this reason the plurality conduct, they such that course of arise out of an indivisible burglary 654, the two under Penal Code section could not be punished separately by circumstance aggravating be considered as a single felonies should majority the same Following policy, Cal. 3d at jury. (36 64-65.) pp. 731, 751 Cal.Rptr. 37 Cal.3d Bigelow (1984) of this court in People [209 murder circumstance 994], narrowly special 691 P.2d construed felony circumstances financial it from the gain distinguish special 375, 410 44 Cal.3d murder. The recent v. Howard People decisions v. Kimble 44 Cal. 3d 749 P.2d Cal.Rptr. 279] Howard continue this policy. 749 P.2d 803] generally, a broad circumstances financial-gain special view of the adopts 731) 37 Cal.3d Bigelow (supra, but retains the narrower construction a defendant’s con circumstances whenever prevent duplicative aggravating and murder for felony duct could otherwise both murder be considered Kimble, opinion financial of the gain. following reasoning plurality *56 Harris, 36, “avoid narrowly 36 factor in order to (b) Cal.3d construes (Ante, pp. the of circumstances.” problem artificially inflating aggravating The this established 505-506.) majority poli makes no reference to opinion avoid cy construing overlap of the 1977 and 1978 death statutes to factors. ping duplicative 654, bars
The Penal which majority reject the of Code section guidance conduct, on the ground for an indivisible course of multiple punishment I this question that Penal Code section is a more statute. specific 190.3 190.3, 654, the it is discusses section not which description; specifically case, a specific of acts one In punishment that violate more than statute. statute, and statute is assumed to in the context of the more operate general Court they Municipal are to be read v. together (Bowland and harmonized. 630, 479, The rule 1081].) 18 Cal.3d 556 P.2d (1976) 489 Cal.Rptr. [134 an that a statute more one and constitutes special general controls over a to the to the when the statutes refer exception general only rule two applies 1 Cal.3d subject (1969) same matter and are inconsistent. v. Gilbert (People 475, 724, 43 In re 580]; (1954) 479 462 P.2d Williamson Cal.Rptr. [82 513, 651, 654 v. 21 593]; Riley (1937) Cal.App.2d Cal.2d P.2d Pierce [276 536 P. 206]; 518 P.2d v. Isensee 45 (1920) Cal.App. 531, Cohn [70 [188 construction, always in is the 279].) As the basic whether statutory question general an to the Legislature exception intended the statute to be special Proc., 24 Cal.2d 1859; Moroney (1944) rule. Code Civ. v. (See People § 78 319 Cal.App.3d 643-644 P.2d v. 888]; Hopkins (1978) People [150 of that the drafters absolutely I no indication Cal.Rptr. 572].) see [142 for an enhanced punishment Penal Code section 190.3 intended to permit special course of several happens produce indivisible conduct which circumstance findings. and
The
of Penal Code sections
majority assert that reconciliation
to protect
frustrate
and voters
Legislature
190.3 would
the intent of
of
safety
safety
societal interests in the
of the
and
person
separate
of
“Robbery
integrity;
involves an assaultive invasion
personal
property.
p.
ante at
sanctity
(Maj. opn.
an invasion
of the home.”
burglary
654, however,
deter-
By
Legislature
768.)
enacting Penal Code section
transac-
mined that
indivisible
burglary
robbery
a
which are part
be
only
(See
(1985)
Cal.App.3d
tion can
once.
v. Smith
punished
People
cited;
v. Lee
Cal.Rptr. 43],
and cases
[210
Cal.App.3d
231]; People
Garrison
Cal.Rptr.
In
356-357,
731].)
cert. den.
In I decisions policy prior believe we should adhere to aggravating Penal interpret duplicative Code section 190.3 avoid I factors derived from of conduct. therefore indivisible course single, special that the trial that the instructing conclude court erred in not felony murder felony and that of robbery circumstance murder based on conduct, if could based derived from an indivisible course of burglary, *57 there ap- not each be factors. But since considered as distinct aggravating result, join I to be this affected the pears no reasonable error possibility in the affirmance of verdict. May for a
Appellant’s petition rehearing denied was modified to read as above. opinion printed