People v. Odle

May No. 23254. [Crim. 1988.] PEOPLE,

THE Plaintiff and v. Respondent, ODLE, JAMES RICHARD Defendant and Appellant.

Counsel Court, Purver, for Jonathan Matthew under appointment Supreme Defendant and Appellant. Amicus

Eric S. as Curiae on behalf of Defendant Multhaup Appellant. General, White, Attorney John K. Van de Steve Chief Assistant Kamp, General, Attorney P. Edward O’Brien John H. Assistant Sugiyama, and General, Hoffman, Attorneys F. and Blair W. Deputy Herbert Wilkinson General, Attorneys for Plaintiff Respondent. and Opinion

LUCAS, C. J. Defendant James Richard Odle of the first was convicted murder of Aguilar, Floyd Rena the first murder of degree degree and Swartz. deadly “Bemie” The found and personally defendant used murder, weapon (a knife) he dangerous Aguilar personally and that murder, firearm in used a murder. respect Aguilar Swartz With to the Code, found true multiple-murder special (Pen. one circumstance 190.2, murder, subd. with it (a)(3)1); respect to the Swartz found true § 190.2, special three murder (§ (a)(7)), circumstances: of a officer subd. peace 190.2, (§ (a)(5)), murder avoid murder multiple arrest subd. and 190.2, subd. (§ (a)(3)). also convicted defendant of three counts with a deadly weapon (§ assault on a found peace (b)), officer subd. addition, he personally used firearm in In committing the offenses. defendant was (a)), convicted a sawed-off subd. possessing (§ rifle Code, and three counts of automobile He was sen (Veh. 10851). theft § to death tenced for the murders. This automatic arises under appeal 1978 death We penalty law. affirm.

I. Facts April Kathy Flannery Flannery’s and Rena Aguilar lived in the City house of Pinole. Flannery had known for about 15 defendant years had been him “seeing” before he was to state prison. sentenced parole After his in October visitor at the a frequent Flannery home. Flannery

Defendant told he wanted a van or a truck visit someone Thereafter, Oregon. Flannery noticed a van from parked across street her house. She told she van Aguilar thought the was stolen. Defendant was later identified as the man who had taken the van from a Richmond used on car lot pretense taking a test drive. murder, defendant, Odle, the day

On of Aguilar’s Bryan his nephew, Moran, William a friend of the family, Odle left San in defendant’s Pablo statutory 1All further citations are to this code unless otherwise indicated. around driving hours They eight the next Impala. spent

1968 Chevrolet buy to and con- County, periodically stopping Contra Costa northwestern as did not drink much driving was and of beer. Defendant sume six-packs noon, “hit” of the three took one each of Bryan. Moran and Around as remain- the LSD, Bryan split drug. the Moran but were unaffected the trio lunch, p.m., About felt no effect. but still drug after der Flannery’s the street from across to the van was parked drove where stolen house, van. Soon thereafter left the Chevrolet and parked defendant’s call. and made a telephone in Pinole at a station stopped gas bitch,” vehicle, kill or “wanted to that to he said he When he returned the nor asked Bryan Neither Moran he to kill that bitch.” “going that he defendant what meant. Raymond, who joined Jessie acquaintance,

The next met an group eventually Berkeley four drove to beer men drinking party. peripatetic They then night. made tub for later that a sauna and hot appointment a between Moran and Berkeley erupted to the When fight drove waterfront. screamed, may “This Raymond, Bryan a table in the van. Defendant broke van, . . . van.” to the my proceeded stolen but it’s The foursome bowl, Albany Raymond during where left the At some group. point afternoon, Raymond say “girl” heard defendant an unidentified knew about it that he had taken the van and “he was to talk her going something.” left, hot

After sauna and tub Raymond appoint- trio went their 10:30 and 11 Moran told driving ment. While back to Pinole between p.m., back in prison.” defendant he was and was to end “stupid,” “going up van brought hand and to a Defendant struck Moran with the back side hid in some bushes on the of the road. jumped Moran out and stop. say you I am to kill yelled: anything going Defendant “If snitch or you looking . . . .” for 25 for Bryan Defendant and drove around minutes Finally they Bryan Moran. station. testified defendant left stopped gas at a in her Flannery, gas sitting the van and talked to who was at the station car. said, Kathy’s he “I to be at When defendant returned to the van have 11:30 for a phone call.” Defendant, Flannery’s drove house. Bryan holding

Defendant and iron, door, Bryan front with through entered house unlocked tire hallway, telephone rang, in the following. While defendant stood Bryan saw defendant Aguilar telephone. left her bedroom answer tire as screamed and tried Aguilar her head with the iron strike twice stom- the scene “turned Bryan to cover herself. left house because [his] you is say: get, “This what Bryan ach.” As he heard defendant leaving, bitch, minutes, ten Bryan for After five to into the snitching.” walked back left choking Aguilar. house and saw defendant He the house. again later, A Bryan back the short time defendant walked outside and told to van keys. Aguilar to the handed him the Defendant up porch, and carried Bryan in put out a blue and her in the van. saw what he wrapped quilt be a thought to head. He also that she large pool Aguilar’s blood saw Bryan was still “put misery.” told defendant to her out of breathing. her Defendant then “a hit her more times.” couple in

Bryan refused to ride the van. Defendant went the house and got inside the car keys Aguilar’s Bryan. Bryan away to and them drove in gave to car, him, Aguilar’s but soon realized defendant was not and following at a Defendant then in van stopped stop sign. up and pulled quickly to Bryan, ordering screamed to him van. the van get Bryan entered away. and the men Aguilar Bryan two drove was no the van. longer testified that “was in ‘The rage. a He was bitch wouldn’t saying, die. The die.’ just bitch wouldn’t He it as kept repeating saying, disbelief T stabbed her and I stabbed bitch her and the wouldn’t die.’”

Several residents of the area had seen the van drive down the street. Dale tires, Dacon heard “squealing” by followed five seconds later a man yelling, then, later, and five to ten seconds she a a “scream[ing] heard woman high At pitched scream.” her she a van “slowly saw and stopping going window our . . . Sylvan down street .” Amdahl heard the of brakes squeal front of cry his house. He then a woman heard out in a loud and “terrified” voice, me, Wallace, someone “Help Lea please help daughter me.” her son-in-law, Alyce, and her by. Donald Hightower, also saw van drive heard, “Oh, Oh, oh, Alyce a scream”; described “shrill she no. no.” Donald ran the street and found Aguilar partially up against a stack of propped on the front newspapers porch of house. An and ambulance was called Aguilar was taken nearby to a where she trau- hospital died “multiple mátic injuries” just after a.m. showed autopsy Aguilar’s injuries major to be of stab types: three chest,

wounds to the stab wounds wounds the head abdomen and and surface of the brain being consistent with object. beaten with blunt The wounds to the abdomen were about three deep, inches some penetrat- ing to the back muscles. There were also neck consistent with injuries being choked chain gold that was found the victim’s neck. around injuries Some could have been by falling caused out of a moving jumping vehicle onto asphalt, others on the hands were self-de- and forearms fense wounds. Meanwhile, Police Pinole van. in the Bryan

Defendant and left area and the the screams because of had called to the area Hodges Officer been stopped The van chase. gave van and He tires. encountered screeching Guy Odle fled on foot. occupants suddenly Merritt Avenue and its two on with his Avenue Merritt lived on (defendant’s Bryan’s brother) nephew 1 a.m. He after at their house sometime wife Michele. Defendant appeared strangled he had Michele for a He told closed the curtains and asked shirt. iron, said he not die. He hit she someone with a tire but that would tried to kill her she was a snitch. because home of and went to left the after about 15 minutes

Defendant house Bennett, Hart, the Odle a friend of Patricia Michele Odle’s mother. Cleona when the Hart house family, Bryan already lived with Ms. Hart. defend- 1:45 Bennett heard defendant arrived between 1 and a.m. sometime him to “snitch going ant tell that he killed because she was Bryan Aguilar Bill to get off he wanted say about the van.” Bennett heard defendant Moran for the same reason. Bill

The house. day Guy next defendant back Michele Odle’s went and Mi- Guy, Moran day telling went to the that and heard defendant house she would chele and a third he but that person stabbing Aguilar kept .” . . . not die. it Moran defendant kind of about laughing testified “was Michele he better leave. Odle advised Moran her breath” that had “under defendant, Moran hotels days feared and next several various spent the until defendant was captured.

Defendant he tore day Although wrote two notes the after the murder. note, it note “I James up first was later reconstructed. first read: The me, Odie, alone, Richard I no helped done the crime one early morning this Loner, Rebel, no one signed did I am a & a I James R. Odle nothing me. Odie, this.” Chevy The second “I I stole the ’76 note read: James Richard van done myself, no one I did crime else even knew it was stolen. also did, alone, i i early this knew morning nothing. anything no no No one help, a, Loner, even am & a i am doing, Rebel & no one even knows what I this, I am done. James In case something happens Richard Odle wrote # Me gone—Find Punk—.” murder, and

Two a Ford truck days pickup after defendant stole 1966 stayed He foothills. City drove an area near Nevada in the Sierra Nevada Crum- Flannery’s in a uncle. The by Kathy mobile home on land owned Gerald rines a stereo to lived on an Defendant traded adjacent parcel. a rifle. At the time Crumrine for 7-millimeter German Mauser deer trade, rifle had a full-sized barrel. day,

The he Bay next defendant to the Area. About p.m. returned stopped and robbed a Sierra Milk Store in That defendant night, Roseville.2 Hart, was seen in Billy San Pablo a different He told driving stolen truck. son, friend, Patricia Hart’s Mark that he had a “sawed- Billy’s Casey, Mauser,” off and showed rifle barrel. As defendant them a with a short said, showed “They them the rifle he ain’t to take me alive.” going On the an day third after the received police murder the Pinole Aguilar early small area morning report might driving pickup truck The seen and armed with a sawed-off Mauser. pickup Pinole, parked around the comer the scene of Flannery’s from house Aguilar The it murder. the truck under police inoperable put rendered surveillance. Later that Detective Janke saw three males morning, Peter enter home. He officers searched Flannery’s called for assistance and several house, the house. While the officers defendant entered searched truck Floyd and coasted it down the hill. Officers Donald Donohue and truck, Swartz nearby discovered the and a told them that parked resident few minutes earlier his went had “barked like hell.” two officers dog into backyard climbed some man’s over the Donohue found fence. freshly grass creek. trampled down a to a He followed leading slope and path crossed the creek backyard into an unfenced on the bank. opposite There he found defendant in at the end a wooden squatting some bushes fence and a holding sawed-off rifle.

Defendant saw used slightly Donohue and shifted his Donohue position. a nearby tree for cover he and his revolver. He to Swartz that yelled drew had found defendant. Swartz officers and joined radioed news to other Donohue, taking a position behind some to Donohue’s left. pampas grass Several other officers behind Donohue and arrived and took positions Swartz. All of the officers in were uniform. surrender, steady

Donohue tried to convince defendant to and kept up . . . discussion. Defendant that he out and responded coming “wasn’t wasn’t to to going back him was surrounded and prison.” Donohue told he give up his position. Defendant “I sure a helluva replied: place picked hide.” The dialogue went on several the end of this for minutes. Toward Swartz, defendant, period, silent, who had been previously yelled “Come on, man, give up,” it and made similar At this the officers point other pleas. behind Donohue and Swartz left cut off routes. possible escape bush,

Donohue observed that Swartz was bent over around a leaning and as if he were view trying get better of defendant. He then saw defendant 2The stopped store clerk and testified identified defendant as the man who at the store robbery guilt phase afternoon. of the Evidence itself was excluded in the based on a defense objection. fired then direction, Donohue stand, fire a shot. single face Swartz’s that en- wound gunshot died of a single Swartz three shots at defendant. side right and exited out near the chest left side of the neck tered the of the back. and canine SWAT secured and the area was shooting

After the Swartz which later, battle gun another following called in. Several hours teams had a officers, He surrendered. defendant fired at a number of defendant bullet wound to the forearm. slight acci- automobile evidence: In a 1973 following presented defense of his the left side blood clot on life-threatening

dent defendant suffered a Blum, a specialist to ear. Dr. Robert brain and a skull fracture from ear the clot removed County at Contra Costa surgery Hospital, neurological in a procedure brain and a cube of defendant’s three-by-three-by-four-inch of defend- lobotomy. The whole visible portion described as a lobe temporal lacerated. lobe was temporal ant’s brain was bruised and Starting Dr. Blum continued to treat defendant at the clinic. hospital and trouble concen- December he had headaches reported reported and was more than He also trating operation. emotional before he and was afraid of uncontrollable He had beaten his wife “spells temper.” re- to “murder” someone. Dr. Blum Thorazine going prescribed ferred defendant to the clinic. psychiatric February January

Defendant the medication and stopped taking In March he less severe bouts of and fewer headaches. reported anger he was occasionally July he control and went berserk. reported lost he had county gone admitted to the ward of the because psychiatric hospital berserk after Dr. Blum was uncertain becoming intoxicated with alcohol. Defendant told injury. whether defendant’s actions were related to the brain always him he had way. fainting been that In defendant August experienced and In falling spells, during September which his lower limbs would shake. 1974, Dr. Blum during inserted a over an that had been left plate opening this the earlier brain Dr. Blum after operation. again did not see defendant second operation. County

Dr. Contra Costa Program Leonti Chief of the Thompson temporal Mental Health Dr. testified that the Program 1973. Thompson ideas, and in giving lobe aids and integrating understanding complex order to behavioral In Dr. Thompson’s opinion, responses. of a

suffered from an disorder. The behavioral disturbances organic brain beyond this He also stated that person with condition would his control. a “[njormal everyday trigger completely kinds of stimuli” could disproportionate reaction in such a and that person of alcohol consumption or narcotics could aggravate lobe disorder. temporal

Defendant was admitted to the acute receiving ward of Con- psychiatric tra County Costa three times after Hospital the accident in 1973. He was combative, assaultive, agitated and disoriented for prolonged periods during his commitment. Defendant was committed in 1974 after he had again become violent and threatened himself and others. In 1975 he was again committed after he was backyard. found in a He became prowling violent incoherent, when apprehended speaking unintelligible sentences and words. Throughout and 1976 defendant visited the Richmond outpatient clinic with the same and lack of symptoms anger, rage impulse control. In 1976 he was diagnosed by a Department Corrections physi- cian as from suffering syndrome brain nonpsychotic organic with explosive personality. Holtz,

Dr. Steven a neurologist, testified that an electroencephalogram (EEG) performed in his office in abnormality 1982 showed two types indicating disorder, an seizure “epileptic disorder.” This he explained, could have affected defendant’s behavior inability and caused an to control temper rage. Dr. Holtz testified only that an EEG taken in 1980 showing mild abnormality, and two normal EEGs taken in were not neces- sarily inconsistent because the disorder only during surfaced sleep, earlier EEGs did not indicate under what were they circumstances made.

Defendant’s wife and several members family of his also testified to changes after personality They accident. that before the explained kind, injury he had been gentle only was in responsible. exception 1971 when he shot a man in the buttocks after the victim and several other men had assaulted him. family His testified that after the automobile acci- dent violent, defendant became unpredictable, suicide a and attempted number of times. rebuttal, Dr. Paul Berg testified that defendant suffered from although

organic brain syndrome, there was no automatic between that relationship condition and criminal behavior. He testified there was no evidence of diminished from capacity any source either of the two regarding killings. Instead, Dr. Berg asserted defendant’s behavior indicated he was able to think rationally, actions, make choices and his that weigh defendant could be classified as a sociopath.

After the determined defendant’s guilt, the following penalty phase evidence was The presented: offered prosecution evidence of other crimes defendant. Additional evidence was received as to the incident in this assaulted; as a result after being man in the buttocks which he shot a In 1972 battery conviction. he suffered a misdemeanor incident per- while building of a commercial degree burglary was convicted of first while robbery was convicted In 1976 he sonally armed with a firearm. burglary firearm, he committed In 1980 armed with a and auto theft. victim, not resisted. who had his injuries substantial on

robbery, inflicting Odle murder, Bryan bomb to pipe he showed a day On the of the Aguilar to the the bomb to attach that he planned and William Moran and stated him, car, killing up it blow that would Flannery’s manifold of husband’s day before On the money. insurance Flannery and that would collect murder, the sawed- using Milk Store in Roseville Swartz he robbed a Sierra off rifle. in defend- the change defense evidence about additional presented testified defendant

ant’s after his accident. His personality nephew home and him leave his family his wife took him in after caused problems him. The to care for only defendant was the relative who agreed defendant suffered also told of the accident and nephew surgery how after episodes blackout in which he fall to the and other spells ground, would wildly. which he became excited and acted was an

Defendant’s that before his accident defendant employer testified excellent he and his worker who got along coemployees, well with wife invited on numerous defendant and his former wife to their home occasions, considerably. and that after the accident defendant changed

Defendant’s who was former wife testified that he and their daughter, trial, close, he years old at very prison the time of were and that when into day. would write to his were read daughter every Some of the letters evidence. and rob-

The defense burglary also evidence about the 1980 presented any of the bery. It was shown that not match defendant’s did fingerprints seven usable prints found at the residence. burgled

II. Guilt Phase Issues A. Denial Motion to Sever Murder Counts sever his motion to

Defendant contends the court erred in denying the two murder counts. We disagree.

402

He joinder 954, concedes was proper under section because the offenses were connected in their commission and were of the class.3 same He argues, however, that the court abused its discretion in refusing to sever the murder “in charges justice.” interests of (§ 954.) joinder 954, When is proper under section a defendant “can predi cate only error on a clear of v. showing prejudice.” (Williams Superior 441, Court 36 (1984) Cal.3d 447 683 Cal.Rptr. 699].) P.2d As we [204 Wiliams, observed in the first in step analysis is to determine whether other, evidence each case would have been admissible in the because such cross-admissibility ordinarily would any inference of dispel preju case, dice. In this the People argue that evidence of the Aguilar murder would have been admissible to motive in show a separate prosecu Swartz, tion for the murder of and that evidence of the Swartz murder would have been admissible to show consciousness of in a guilt separate Defendant concedes prosecution for the murder Aguilar. of the admissibility case, of the Aguilar evidence in the Swartz but disputes relevance of the Swartz murder4 any “contested fact” in Aguilar murder case.5

We recently noted that of is escape admissible to show “[e]vidence consciousness of guilt admit and it is permissible to evidence of [citation] 3 provides: Section 954 accusatory may “An pleading charge two or more different offenses together commission, connected in their or different statements of the same offense or two or more offenses, counts, different offenses of the same class of separate crimes or under and if accusatory two or more court, pleadings may are filed in such cases in the same the court or der them prosecution consolidated. The required is not to elect between the different offenses or counts set accusatory forth in the pleading, may any but the defendant be convicted of number of the charged, offenses and each offense of which the defendant is convicted must be stated the verdict finding court; or the provided, of the that the court which a case is tri able, in justice shown, good interests of may and for cause in its discretion order that the different offenses or counts accusatory set forth in the pleading separately be tried divided into two or groups more groups and each of said separately. acquittal tried An of one or more counts shall not be acquittal deemed an other count.” initially He People claims the guilt possible ground cannot assert consciousness of as a for admissibility of the Swartz evidence because that issue was not raised below and “this theory admissibility new be appeal.” Although for the first time on [cannot defend raised] might ant reviewing evidentiary correct were we ruling, purpose determining an whether evidence would hypothetical have been separate simply admissible trial is evaluate the may extent to which prejudiced by have been of a a denial motion to sever. Whether particular theory or not a cross-admissibility posited below is irrele vant. 5By fact,” referring to a “contested argument implies defendant’s that defense counsel’s effective concession at trial of responsibility Aguilar defendant’s for the murder would have made Nevertheless, evidence guilt of consciousness of irrelevant. must evaluate mo “[w]e tions objections for severance and light to consolidation in showings then made and the facts then (People known.” v. Balderas Cal.Rptr. Cal.3d 480].) P.2d pretrial At the time of the position appeared severance motion the defense to be Bryan party Odle or some responsible Aguilar third killing. for the

403 attend- all the facts shows Such evidence during violence escape [citation]. of the force the probative or decrease the to either increase ing escape, however, of that evidence acknowledged, be It should escape. [Citation.] effect a easily prejudicial an could have injury during escape force and/or Cal.3d (1984) v. Holt (People value.” outweighs any which probative 547, 1207].) P.2d fn. 11 Cal.Rptr. [208 exclude has discretion to Holt makes the court broad clear that trial Thus, say we cannot during escape, evidence of violence an in separate definitively that have been admitted the Swartz murder would however, clear, many of the circum Aguilar trial on the It is charges. murder, resisting including flight stances the defendant’s surrounding Further, arrest, guilt. of would to show consciousness have been admissible in a admissibility of murder Aguilar there is no dispute regarding This cross-admissi murder. substantial prosecution for Swartz separate in denial may abuse discretion bility alone to find no enough defendant’s severance motion. in a

Even not have been admissible the Swartz murder would assuming murder, its trial on the the court abused Aguilar it not follow that would “ refusing discretion severance. ‘The discretion in denying judge’s uncharged severance is broader than his discretion in evidence admitting . . . .’ offenses is of the weighing on a to sever based on ruling motion [A] effect, value probative as in the against prejudicial weighing process but side. beneficial results from are added to joinder probative-value This requires showing defendant to make an even stronger prejudicial effect than would be to admit other-crimes required determining whether evidence in a v. Court severed trial.” (Coleman Superior Williams, 36 Cal.3d Cal.App.3d 86]; 138-139 Cal.Rptr. 441, 451.) counts, moving joining the murder argued sever defense

Swartz case deci- with certain tactical prosecution complicated the Aguilar only sions in This was the defending against Aguilar charges. prejudicial joinder effect of Defendant’s request cited the defense in the trial court. granted for an in camera to discuss the tactical hearing complications held. objection, hearing over and an unrecorded in camera prosecution day sever. The next the trial court denied the motion to of the murder counts undermined argues joinder Defendant now diminished-capacity He out that the points defense. diminished-capacity charges Aguilar evidence was in defense of the primarily introduced killing, was not relevant Swartz With to the Swartz respect to the murder. in the direction defense counsel that defendant shot argued simply officer in made it joinder order to draw fire and cover his He asserts escape. difficult jury for the to between the defense theories. distinguish separate

We find no evidence in the to defendant’s claim. The support record never to the prosecutor argued regard that defendant’s conduct with Swartz murder somehow de- credibility diminished-capacity lessened the of fense, way theory nor did he in the defense relate the Swartz murder to addition, counsel, on the on more than one Aguilar charges. defense occasion, advised the to view the offenses separately. undermined, by

Defendant’s evidence not was diminished-capacity offenses, joinder testimony of but of several witnesses that suggesting defendant had and All Aguilar. the murder of wit premeditated planned nesses day with defendant on the of the murder testified that he associating was rationally deliberately. testimony and This not contradicted acting by any “The demonstrating defense witness. burden of that consoli dation or denial of severance was a is upon abuse of discretion prejudicial him it; who asserts must be and bald assertion of prejudice proved, ‘[a] prejudice (Balderas, is not enough.’” 41 Cal. 3d supra, 171.) say We cannot based on the assertion of made to the prejudice trial court that it abused its trial. discretion a consolidated permitting trial, this

Although was a none of the factors pre-Williams remaining detailed in Williams for separate consideration a for deciding request trials alters our view. This is not a case in at least one and possibly which other, two relatively weak were charges joined raising each support danger jury would the evidence convict on both aggregate charges. (Williams, crimes 453.) Cal.3d at The evidence both p. indeed, was overwhelming; defendant did not at trial that he was dispute responsible joinder for the Neither was this a killings. case which (id., alone made defendant because subject 454), death penalty p. the Swartz Although murder had its own attached. special circumstances inflammatory murder a Aguilar brutal and particularly arguably crime, this factor is not sufficient to find an abuse discretion when there is substantial cross-admissibility and none of the other indications of prejudice is present.

B. Instructions on Substitution an Alternate Juror deliberations, after Shortly necessary the start of it became replace juror with an and In Peo juror, alternate both so parties stipulated. v. Collins 17 Cal.3d ple 742], P.2d Cal.Rptr. that, we Penal interpreted Code section 1089 to in such situations require “the court instruct the to set aside and all past deliberations disregard one of be further advised should anew. begin deliberating and as juror with an alternate discharged replaced has been its members to the defendant People to the by law; grants that the law provided who jurors the 12 after full only participation reached to verdict right if the assured may only verdict; that this ultimately right return a remaining that each again beginning; from the begins deliberations they ifas deliberations the earlier juror disregard must set aside and original had not been had.” case, compelled “The court is

In this the instructed as follows: court from your are to deliberations you you under the to that start law admonish because, had the has not McHenry Mrs. obviously, scratch alternate] [the . discus- your . . . had so far Start you benefit of whatever discussions have of that everything has full McHenry sions from so that Mrs. benefit scratch time.” has on between to the gone jury up present the scratch,” jury the By the “start the court instructing jury implied to from however, that adding, should disregard previous By deliberations. McHenry the start Mrs. full benefit of jury should from scratch “so that has time,” everything implied that has . . . the court gone up present on to the instead, deliberations, the start should not but disregard previous in matters have again bring juror order to the new on what “up speed” already been discussed and decided. possibly instruction,

This defeat the the Collins interpretation purpose would of which intends to 12 verdict has jurors reaching “insure that each of fully (Collins, . . . .” 17 Cal.3d participated the deliberations Collins, As 12 reach a 694.) we said p. requirement persons “The unanimous is through verdict not met unless 12 their consensus those reach are . . . Delib deliberations which the common all of them. experience of erations provide jury with the to review the evidence opportunity memory light perception Equally important of each member. as member’s are and interactions shaping reactions viewpoint personal any her view juror accept individual his or attempts persuade others the decision- point. easily result is balance if a enters juror new upset (Id., at making process after the 11 others commenced deliberations.” have p. 693.) Industries, error, Inc. we find v. Dart no Griesel

Assuming prejudice. P.2d we observed 503], Cal.3d Cal.Rptr. deliberating that the comparison spent closeness of the case and the of time factors to be before and after the substitution of the were juror alternate considered error. In Griesel we when from Collins determining prejudice found had the error the case close and prejudicial because was substitution, verdict days

deliberated for seven before and rendered its less than four hours after substitution. In Collins itself we found error harmless against “very because the case the defendant was strong” jury had an deliberated for little more than hour before substitution made, and returned a after hours of deliberation. verdict several additional

In this against case evidence defendant was he conced- overwhelming; ed responsibility for the evidence was diminished-capacity crimes and inconsistent with the day Aguilar evidence his conduct on the Furthermore, murder. one after- only had deliberated for part substituted, noon newly before the alternate and the constituted juror days went on deliberate for an two-and-one-half before additional a verdict. these find in the returning Under circumstances we error court’s instructions harmless.

C. His to Be Present Right Waiver Defendant’s deliberations, court, After jury began its the trial at defendant’s re- him quest, allowed to his in right waive to the courtroom for present back, “questions that are handled of jury thing without the that sort coming Later, . .” . . pursuant to this counsel in agreement, defense defendant’s absence agreed to jury allow the to review the of a certain wit- transcript later, ness’s testimony arrangements which it had Still various requested. were in discussed jury front of the defendant At that being present. without time, the trial court jury defendant’s absence to the as the result explained “an of agreement. already . . effect that it put on the record to the would be necessary not for to this Defendant’s coun- be here at time.” [defendant] sel assented to this characterization earlier waiver. The next of defendant’s day, was in defendant court were present transcripts supplied when various the jury to its for use in deliberations. The at that time prosecution request- aed clarification of with to this De- practice. defendant’s position regard fendant by responded waiving any that testimo- specifically requirement court, ny requested by the jury be read in and consented to its open back being furnished of the instead. properly transcript screened copies

Defendant, authorities, his to citing right federal now contends have any testimony by his was requested jury presence read back in not waivable, and waive right that court erred in him to that permitting in jury v. providing agreement. (Diaz with to that transcripts pursuant 500, 505, United States (1912) 223 U.S. 32 S.Ct. L.Ed. [56 250] [capital of right every stage defendant to be at of incapable waiving present trial]; v. Eyman (9th Bustamante 456 F.2d 1972) [capital Cir. defendant not waive may right to be for of instruction present replay taped Furthermore, jury].) is because it cannot be he asserts reversal compelled a reasonable beyond harmless that the “error” was from the record shown ¡doubt. 596, 599-600; cf. F.2d 1977) Cir. (8th v. Brewer (Blackwell Bustamante, p.275.) 456 F.2d at proceedings all to be for right present

We not defendant’s question do how authority, no controlling He cites take in the courtroom. place court, consent ever, with the for a his that it is improper for contention lieu of counsel, in transcript and his to provide the accused .6 such a prac in We are testimony open unpersuaded court rereading opportunity way in “the fullness tice encroaches on [defendant’s] 97, 105-106 291 U.S. his case. v. Massachusetts (Snyder defend” such, 674, 678, waiver 575].) As defendant’s L.Ed. 54 S.Ct. 90 A.L.R. in presence his testimony his read back requested have right entirely permissible. when

The did allowing presence court err discussion to be right waive his was absent.7 At no time did defendant however, error, jury. before the present proceedings taking place fully all and participated harmless. Defense counsel was times present furthermore, receive; what decisions about materials the should no such that defendant’s absence was to the adequately explained absence injurious inferences could have been the fact drawn simply from the courtroom.8

D. Time Limitation Dire on Voir limitation time

Defendant asserts the court 25-minute imposed a and, was not en on voir dire limitation though examination even the forced, to felt forced defense counsel was because he adversely affected hurry his examination. 715

Defendant cites v. 94 People (1979) Cal.App.3d Hernandez [156 a has judge the the trial “[although for that Cal.Rptr. proposition 572] case, v. Pennsylvania Peterman Supreme relies a Court Commonwealth 6Defendant on court, dicta, (1968) request at the of 723], Pa. 627 “if the trial 430 A.2d which stated [244 re jury, testimony the out such would constitute sends to the the of certain witness decision, however, 726, (Id., provides p. original.) versible The error. at italics [Citation.]” no rationale for this assertion. 7 earlier, present In episode appears to the to it also not addition referred days its when at of each of the of deliberations. the dismissed the end three 8 authority it is parties good respective positions, The but cite a deal California for their by variously of the inapposite. People proceedings are with out cases cited concerned trials, jury, capital in which presence not defendant cites cases or do involve whereas knowledge of the defend the trial court communicated or consent with without ant or defendant’s counsel. 408

duty to restrict the within jurors examination of the reasonable prospective so bounds as to v. 43 expedite Dorsey (1974) Cal.App.3d the trial (People 953, 966 for voir Cal.Rptr. 362]), fixing arbitrary of an time limit [118 dire in advance of trial dangerous appeal.” is and could lead to a reversal on (Hernandez, 719, omitted; 94 see Cal.App.3d p. 1078.) at fn. also §

We recently have fair spoken strongly about the to a right impartial jury. In v. People Armendariz (1984) Cal.3d Cal.Rptr. [209 243], P.2d unanimously we held that improper denial of counsel’s “ to request use his peremptory right reversal: ‘The to a challenges requires fair and impartial jury is one of the most important sacred guaranties of the constitution. it no as to infringed, Where has been inquiry the sufficiency of the guilt indulged evidence show is and a conviction so selected must be Riggins set aside.’ v. 159 Cal. (People P. 862]).”

Here, however, defendant has his voir dire time was re- failed show stricted. Although court had informed counsel it would apparently schedule given jurors number of prospective appear courthouse each on day assumption an individual examination would take 25 minutes, fact, such a time limit was not enforced. the record shows examinations were approximately juror. 40 minutes When it became per apparent the court that 25 min- averaging examinations were more than utes, it asked counsel if this would continue. When counsel replied affirmatively, the court did not but object, appear- instead rescheduled the ance dates of jurors they have to come here and prospective “so that don’t wait around.”9 We conclude that use a 25-minute examination as estimate a scheduling tool did not fair prejudice right impartial defendant’s to a jury.

E. in Instructions Conflict

At the request sufficiency of both parties, the court instructed on testimony of a (CALJIC necessity single 2.27), witness No. and on accomplice testimony be (CALJIC 3.11.) corroborated. No. De fendant now contends testimony Bryan that with to the of the regard Odle former, effect of the latter instruction was in undermined the resulting prejudicial error.

We recently addressed this issue in v. precise People (1985) Chavez 39 49, when, Cal.3d 823 705 Cal.Rptr. 372], P.2d There we found that as [218 conversation, stated, 9During really this defense “I the counsel am concerned about time pressure Although and the putting suggests constraints the is on court me.” this comment de examination, may hurry fense pressure counsel have felt some to he was not asked to cur tail voir nor dire was he that threatened his voir dire be curtailed. would

409 on instructed here, was further (ii) 3.11 the given, CALJIC No. (i) corroboration, an view constitute necessary kind of the evidence urged never prosecution testimony (iii) with distrust accomplice’s corroboration, testimony without accomplice’s accept case, (Id., this 831.)10 In at p. not and no resulted. jury was misled prejudice Chavez, find no error. as we Special

III. Issues Circumstance that dispute not the four defendant does findings, Of circumstance special of finding multiple one avoid arrest and (the finding two of murder to circum- special murder) unchallenged were Either of these two proper. penalties for eligible stance is sufficient to render defendant findings 190.2, subd. (a).) (§ death or life in possibility parole. without prison murder, and the multiple Defendant challenges finding second finding cannot of a To the extent either such finding peace murder officer. as phase be it not be at upheld, penalty could considered properly (a) choice under factor affecting factor” separate “aggravating penalty cir- “any special of section 190.3 consider in (sentencer aggravation shall 42 Rodriguez (1986) cumstances found to be v. Cal.3d true”). (See People 730, 667, 113].) 726 P.2d Cal.Rptr. [230 Findings

A. “Excessive” Multiple-murder Special-circumstance a defendant The multiple-murder special applies circumstance when of murder present proceeding is convicted of than one offense more however, 190.2, degree. the first The (§ (a)(3).) prosecution, subd. circumstance, may only even properly allege one multiple-murder special murders in though two more capital may charged defendant with 1222, 1273 v. Allen 42 Cal.3d proceeding. (See People (1986) [232 P.2d v. 36 Cal.3d Cal.Rptr. 115]; Harris People P.2d Cal.Rptr. (plur. opn.).) 433]

Here, circum- special defendant with two charged multiple-murder Swartz, murdered having stances: murder of also Aguilar, Swartz, Aguilar. and the murder of also murdered defendant having instead, should, a single It found jury found in accord with the have charge. circumstances, held, however, 2.27, given 10We such CALJIC No. when under (Chavez, supra, explicit testimony requiring “should” include an reference to corroboration. 831-832.) pp. question, un- distinguish attempts Defendant in that case the witness Chavez because Chavez, however, Odle, spe- Bryan In we accomplice like an a of law. was not as matter cifically accomplice rejected People’s argument questionable status that the witness’s (Id., 830.) p.at should in there was error. make difference our determination of whether 410

special circumstance one multiple of murder. of the two Consequently, (Accord, must be vacated. multiple-murder special-circumstance findings Allen, 42 at p. 1273.) Cal.3d

B. Murder a Peace of Officer 190.2, Section a (a)(7) subdivision lists as circumstance: “The special who, victim a . was . . peace officer while in the course of the engaged killed, of performance was intentionally duties and such defendant knew reasonably or should have known victim that such was officer peace in the . .” engaged performance of his . . Defendant duties claims it was error to omit instructions on special the elements of this circum stance.

The amended information in the lan- alleged special circumstance guage of subdivision (a)(7), included the that defendant charge knew or should have known was a Swartz officer in the peace engaged performance court, however, duty. of his The gave no instruction on the circum- special stance. The jury “the found true Circumstance De- Special allegation that fendant, Odle, Swartz, James intentionally Floyd Richard killed a peace “ officer engaged . . duty of his . . performance finding The did not state whether defendant knew or should have known Swartz was a peace officer engaged in Attorney the performance duty. of his General does error, not this dispute was but claims the circumstance special finding may nonetheless be upheld, because the did jury’s error not “prejudice” result on this issue. outset,

At the we must decide what standard review to instruc- applies tional error of this kind. v. People (1984) Garcia Cal.3d 539 [205 265, 684 Cal.Rptr. 826], P.2d we concluded failure to instruct on an element a special circumstance under the 1978 death penalty law is federal constitutional error. We such error to those analogized Sandstrom v. Montana (1979) 442 (instruction U.S. L.Ed.2d 99 S.Ct. [61 2450] suggesting directed verdict of burden presumption relieving People every proving ingredient of beyond doubt) offense reasonable and Con- v. necticut Johnson U.S. 73 L.Ed.2d S.Ct. 969] (conclusive presumption equivalent of directed verdict) attempted anticipate test of the United States Court prejudice Supreme would for this adopt type of We from error. concluded indications the high court such suggested error would be per reversible se the absence of facts supporting application of one or (i) more of four limited If the exceptions: erroneous instruction given connection with an offense which the defendant was and had which acquitted no on the offense of he bearing convicted; If (ii) issue; the defendant conceded If the factual issue (iii)

411 to the adversely resolved necessarily instruction by the omitted posed exception “Sedeño” (the instructions given other properly defendant under 1, 913])); 518 P.2d Cal.Rptr. 703 10 Cal.3d v. Sedeno (1974) (People [112 evi issue, all the presented the element If the realized (iv) parties established issue, both the record on the dence at their command evi contrary showed law and a matter of of the element as existence (Peo exception” “Cantrell-Thornton worthy (the consideration dence not 1256]; P.2d 504 Cal.Rptr. 672 8 Cal.3d (1973) v. Cantrell ple [105 467, 523 P.2d Cal.Rptr. 738 11 Cal.3d (1974) v. Thornton People [114 (36 554-556.) Cal.3d at 267])). pp. revers- test of yet has to enunciate Court

The United States Supreme is finding circumstance or special of an offense ible error when an element however, has, shed recently The court jury. instructions to the omitted from of constitu- issues, errors instructional and has held that some on these light court. reviewing aby harmless may tional dimension be found cases, U.S. 376 (1986) Cabana v. Bullock In the first of these [88 decision that the made it clear 689], L.Ed.2d 106 S.Ct. the court not be case need in a given a is particular punishment appropriate whether limitations on by jury, made a and that Amendment-based Eighth sentencing on are limitations of the death substantive imposition penalty Therefore, to sentenced a by jury. person that need not be enforced a “[i]f kill, killed, kill, the Eighth to death in fact or intended attempted of who regardless itself his or her execution Amendment is not violated token, if a same by the culpability; makes the determination of the requisite the Eighth sentenced to death lacks the requisite culpability, person that has the by any court Amendment violation can be remedied adequately (Id., L.Ed.2d find the vacate the sentence.” at p. facts and power [88 Garcia, 539, the 716-717, 36 Cal.3d 697].) 106 S.Ct. at As in pp. p. reaching basis for kill. We see no element issue Bullock was intent to however, because the error at issue here different conclusion with respect officer victim is a given peace of defendant’s that a degree knowledge the culpa also an element that establishes performance his duties is Bullock there bility of the death requisite imposition penalty.11 Amendments to the Eighth fore teaches that there is no under Sixth or right of all of the existence United States Constitution to have a determine the elements of a circumstance. special however, notes, in Hicks v. Okla- earlier decision

Bullock also the court’s Hicks held that 2227], 100 S.Ct. homa 447 U.S. 343 L.Ed.2d close of findings made at the special are procedure, Under our state’s circumstance verdict, trial, “penal during the rather than “guilt phase” following degree murder first purposes this ty significance. For phase.” (§ 190.1.) This difference has no constitutional analysis sentencing finding issue. special circumstance is a if state law creates an jury findings, entitlement to “the Due particular Process Clause do not suffice to that implies appellate findings protect (Id., 387, 717, entitlement.” fn. 4 106 at p. L.Ed.2d at S.Ct. p. pp. [88 697-698].) It has been that Hicks reversal of a suggested requires special circumstance if the find jury necessarily did not all elements. We disagree.

In Hicks the state law entitlement was to a determination of the jury punishment to be jury mandatory The in that case had a imposed. imposed 40-year term on the unlawfully defendant who had been convicted of dis- heroin tributing and found to be an habitual offender. Thereafter the habitu- al offender statute had been declared The appellate unconstitutional. court nonetheless affirmed the sentence after that the defendant had concluding not been prejudiced by the mandate of the invalid statute because the sentence was within the range of otherwise for the permissible punishment held, underlying substantive “[w]here, offense. The court ... a State high has provided criminal in the imposition punishment discretion for the trial jury, it is say not correct to in the defendant’s interest exercise of that merely discretion is a matter of state law. The procedural defendant in such a case has a substantial and he legitimate expectation that will be deprived of his liberty only to the in by extent determined the exercise of statutory its . . . liberty discretion and that interest is one that the Fourteenth arbitrary Amendment preserves against deprivation the State.” (447 U.S. at p. 180], 346 L.Ed.2d at italics p. added.) [65 Because had not determined the sentence and the appropriate appellate court had not itself reconsidered the of the sen- appropriateness tence, the Supreme Court held that the had deprived defendant been of his liberty without due In the process. case no present comparable deprivation occurred. Defendant’s a right to have determination of the appropriate Hicks, punishment was not in any way. curtailed Neither Bullock nor there- fore, requires that the “murder of a in officer of his peace performance duties” special circumstance be set aside. Garcia, 539,

As however, we in concluded 36 supra, Cal.3d the facts to be found in determining are special allegation circumstance true no less crucial than those to be found as elements of a crime. A special circum- stance finding places the in for the category persons eligible death penalty as to a 25 A opposed years liberty term of to life. defendant’s interest the accuracy of this by jury, and in it made is no finding, having less when a special circumstance is in issue than the determination of guilt. (Garcia, 36 supra, Cal.3d In this the second recent 552.) respect Court, decision of the United States Rose v. Clark 478 U.S. Supreme L.Ed.2d 3101], S.Ct. is instructive. not a circumstance special of guilt, Rose involved the determination instructions, by the court like that considered earlier error in The finding. Sandstrom, a rebut- this time involved a presumption, U.S. instructed that trial had been in a murder table presumption. absence of evidence to be malicious homicides were presumed of Appeals the Sixth Circuit Court rebut the After implied presumption. on that the grounds habeas relief corpus had affirmed a judgment granting on the issue of proof the burden of shifted presumption impermissibly harmless, malice, Court Supreme States and could not be found United analysis the harmless error certiorari on the of whether granted question not all constitutional that Recognizing court of appeals proper. conviction, criminal the court held that errors reversal of a require analy- a harmless error instructional error those errors to which among may sis be applied. to harmless- subject

The court first out that errors that are not pointed 18 L.Ed.2d analysis error under v. 386 U.S. Chapman [17 California 824, 87 “We have empha- S.Ct. 24 A.L.R.3d are the exception. 1065] . . . does not sized that while there are some errors to which Chapman if they Accordingly, are the and not the rule. apply, exception [Citation.] the defendant had there adjudicator, counsel and was tried an impartial is a that have occurred are strong presumption may other errors subject to harmless-error The constitutional analysis. many thrust of the governing rules the conduct of criminal trials is to ensure that those trials lead to fair and judgments. correct Where a court can find reviewing doubt, the record beyond at trial establishes a reasonable developed guilt the interest in fairness judgment has been satisfied and the should (Rose, 471, 106 affirmed.” 478 U.S. at 578-579 L.Ed.2d at pp. p. [92 S.Ct. at pp. 3106-3107].) necessarily

The court confirmed that reversal is mandated if the error unfair, fundamentally rendered the trial if it aborted the basic trial process, or denied it 106 S.Ct. at altogether (id., at L.Ed.2d at p. pp.470-471, [92 fn. 3106], analyzed but error before it in terms of p. 6), instructional its on the actual trial. The court that in addition to potential impact noted the erroneous instruction of malice the presumption a rebuttable creating jury beyond had been instructed that it had to find the defendant guilty murder, every reasonable doubt of element of first and second degree must although instructed to malice from facts the presume predicate cases, still “In many have found the existence of the facts. predicate intent, could predicate conclusively facts establish so that no rational not find that the defendant committed the relevant criminal act but did instruction is injury. intend to cause In that event the erroneous [Citation.] necessary’ . . . fact ‘every has found simply superfluous: every establish element of the beyond (Id., offense a reasonable doubt.” at p. L.Ed.2d at 106 S.Ct. at court went p. p. 3108].) The on [92 counsel that “our harmless error cases do not turn on the defend- whether Rather, ant conceded factual issue on have which error bore. we held that mandates ‘Chapman consideration of the entire record prior reversing a conviction for . . may constitutional errors that be harmless.’ . whether, is question ‘on the whole record . . . the . . . error [is] ” beyond harmless a reasonable doubt.’ at (Id., p. p. L.Ed.2d 106 S.Ct. at p. 3109].)

In an instructive footnote the suggested analy court that harmless-error sis may be to other applied types of instructional error. “Harmless-error analysis that, addresses . . . is to be done about a trial error [W]hat case, theory, may have altered the basis on which the decided the but 582, practice clearly had no effect on the outcome?” at fn. 11. (Id., p. [92 473, L.Ed.2d at 106 p. S.Ct. at p. 3108])

Finally, and recently, most the court has held that instructional squarely error, offense, even with regard to an element of an be under a may tested harmless error standard. v. Illinois 481 Pope U.S. 497 L.Ed.2d (1987) [95 439, 107 1918], S.Ct. awas criminal for sale of “obscene” prosecution materials. jury was erroneously instructed that in determining “wheth- work, whole, artistic, er the taken as a lacks serious literary, political, 15, (as scientific value” required by Miller v. 413 U.S. 24 (1973) California 419, 431, L.Ed.2d 93 S.Ct. 2607]), the measure to be was how applied [37 the material by “ordinary would be viewed in adults the whole state of Illinois.” Although United States Court with the de- Supreme agreed error, fendants that this latter objective statement was and that an standard was constitutionally it held the error reversal required, require did not of the conviction if under the predicate by jury facts found “no rational juror, instructed, if properly could find value in . . . .” magazines (Id., 447, at 503 p. L.Ed.2d at 107 S.Ct. at the test p. p. 1922].) Stating [95 otherwise, the court held there was to a retrial if it can require “no reason beyond said a reasonable doubt . . . not jury’s that the verdict by affected the erroneous instructions.” (Ibid., p. 446].)12 L.Ed.2d [95 conclude,

We therefore 43 (as we did in v. Lee Cal.3d People (1987) 666, 406, 674-676 752], 738 with to Cal.Rptr. respect conflicting P.2d [238 Bullock, 12The suggestion aspects court dismissed supra, that certain 474 U.S. 376 704, 689], might L.Ed.2d 106 appear contrary holding: S.Ct. [86 to its “To the extent that 460, 106 prior [, supra, (92 may cases to Rose 3101)] 478 U.S. 570 L.Ed.2d S.Ct. indicate that' a conviction can provided require never stand if the instructions do not it to find each see, Bullock, proper element of the crime proof, e.g., under the Cabana v. 474 standard of 376, Rose, 384, 689, 696, they longer good U.S. 106 S.Ct. (1986), 88 L.Ed.2d after are no 704 authority.” 503-504, 447, supra, (Pope, pp. 481 p. U.S. at fn. L.Ed.2d at 107 S.Ct. at 7 [95 p. 1922].)

415 resulted may have offense which of a substantive on an element instructions harmless-error that a consideration), jury’s from the in removal of the issue 18, and const- 386 is appropriate U.S. supra, to analysis Chapman, pursuant itutionally permissible. Constitu of the California under provisions

A conclusion follows similar We error. from the only if results prejudice reversal is required tion: have the to right due process a defendant’s long recognized have v. Modes (People evidence. by the every presented material issue determine Modesto, 225, 722, 33].) 382 P.2d 730 Cal.Rptr. 59 Cal.2d (1963) [31 Sedeno, 703, 720, that an we held 10 Cal.3d in v. People and later not be cured offenses could instruct on lesser included failing error that, reasonably probable it is examination of the record to assess whether instructed, convicted the defendant would have correctly however, (1981) Murtishaw v. People lesser offense. Subsequently, a harmless- 446], 631 P.2d we applied Cal.3d Cal.Rptr. [175 find failed to analysis require error to erroneous instructions that test of Applying intent to kill as an element of murder. attempted v. Watson Cal.2d People enunciated prejudice more favorable reasonably P.2d it is result probable 243]—whether con of the error—we defendant would have been reached the absence conforms test cluded that the error was not Watson prejudicial. VI, of the California satisfies the command of article section to and aside, trial granted, Constitution that shall be set or new judgment “[n]o unless, cause, . after an . . jury on the of misdirection of the ground evidence, cause, shall be of the court including examination of the entire the a miscarriage the that the error of has resulted in opinion complained Cal.2d justice.” (46 836.) circum

Initially, we note that the first two elements of the special of his stance—that Swartz was a officer peace engaged performance Additionally, the duty—were to defense counsel. expressly stipulated element, in the course of jury killing, found the third intentional expressly consideration, failure to its other After careful we conclude that findings. reasonably or instruct the on the last element—that defendant “knew in the have that his was a officer peace engaged should known victim doubt. beyond of his duties”—was harmless a reasonable performance related closely instructed on the We note first that the was properly Thus, verdict circumstance. “murder to avoid lawful arrest” special should reasonably knew or that the found defendant strongly implies was a officer (Swartz) peace performing have known that the murder victim (i.e., arrest). his duties attempting however,

Most is a which the significantly, this case in facts overwhelm- if it is ingly demonstrate that instructional error harmless. Even accepted as a theoretical that defendant murdered Swartz possibility avoid did arrest but still not his was a officer in know victim peace duties, performance of circumstances of murder make it impossi- ble to an been conclude that such assumed lack of have knowledge would murder, Aguilar reasonable. After the knew the defendant would police for him. looking apparent In an encounter with the anticipation police, and, rifle, he obtained a off Hart part Billy sawed of its barrel it to showing them, Later, and Mark Casey, “They told to take alive.” going ain’t me home, while Flannery’s the police searching were for him in defendant evidently fled a through neighbors’ yards and found across hiding place him, creek. Soon Officer Donohue him to attempted found to persuade officers, surrender. arrived and other Swartz called for the who arrived shortly thereafter. All the officers at were in the scene uniform. Defend- Donohue, ant responded he “wasn’t out . . . wasn’t saying coming stated, going back to At “I prison.” one he sure point picked helluva place Swartz, surrender, to hide.” joining effort to defendant to told convince defendant, on, man, up,” “Give it “Come it it up,” up, and “Give give view, throw gun conclusively out.” our these circumstances show that, minimum, at a reasonably should have known Swartz was indeed, would, peace officer in the his duties. It engaged performance of require fantastic on our to hold that a reasonable speculation part could have found otherwise. We conclude that the failure therefore instruct on the fol- special circumstance was harmless under It Chapman. Watson, lows that it 836. was also harmless under Cal.3d circumstance Defendant also asserts the jury’s special finding should be set aside because the state that finding did not defendant knew should have known Swartz was a engaged officer peace performance 247, of duty. his In v. 41 People Davenport Cal.3d 273-275 (1985) [221 794, however, Cal.Rptr. 710 P.2d 861], we held the special-finding require ment of section 190.4 is finding alleged satisfied the truth of the special unnecessary circumstance that it is to find facts on the which that determination based. the jury is The here found the truth of expressly special v. 41 allegation. Burgener circumstance (See People (1986) also 505, 112, Cal.3d 538 P.2d Cal.Rptr. 1251].) 714 [224 Accordingly, the cannot peace-officer special finding circumstance overturned. It properly penalty phase was considered at the as factor aggravation.

417 Penalty IV. Phase Issues

A. Matters to Consideration Subject Instructions on the Standards to be Applied 8.84.1 on the to former CALJIC No. jury was instructed pursuant not defendant’s and was determining

factors it was to consider penalty, in Peo- given (k)” subsequently prescribed factor instruction “expanded 309, 858, 878, v. footnote 10 ple Easley (1983) Cal.Rptr. 34 Cal.3d [196 thereby erroneously P.2d Defendant asserts the was left with jury 813]. that and character was irrele-

understanding his mental condition evidence vant to the instructed sentencing Similarly, jury pursuant decision. was if it to former CALJIC No. 8.84.2 that it was to a sentence of death impose found circumstances circumstances. De- aggravating outweighed mitigating thereby erroneously fendant asserts the left with a misunderstand- statute, ing about the nature weighingprocess called for under the determine, its duty juror’s on the basis of each individual judgment, whether death is the (Peo- under all the circumstances. appropriate penalty 512, 544, v. ple (1985) Brown Cal.3d fn. 17 709 P.2d Cal.Rptr. [220 440], revd. on grounds other sub nom. v. 479 U.S. Brown California Allen, L.Ed.2d 837]; 107 S.Ct. 1276- Cal.3d 1277.)

1. Factor (k)

Viewing matter of the evidence and light arguments present ed, we conclude a reasonable would not have been misled about its duty to consider defendant’s mental condition and character evidence as First, factors in mitigating its determination. penalty plainly instructed to consider defendant’s mental time condition at the 190.3, in determining penalty. (§ factors & CALJIC No. (d) (h); offenses Moreover, 8.84.1.) we believe the was left with the understanding it towas consider mental generally, defendant’s condition as well as character and background, in determining penalty.

The court told the jury, “[you] were in the previously guilt instructed of this trial phase or for a should not sympathy pity this, your influence consideration of the evidence. penalty phase trial, jury may properly consider for the defendant sympathy pity in determining mercy whether to show and the from execu- spare defendant 190.3, tion.” to reading jury (§ After the the unadorned version of factor (k) factor the court not (k)), mitigating defined circumstances as those that do crime, justify may or excuse but which in “fairness” and in “mercy” considered as or the “extenuating reducing degree culpability.” moral

We believe court’s not to jury’s the definition direct the attention helped alone, defendant’s in- moral “the crime” but instead culpability regarding vited it to consider evidence that “in fairness and decreased the mercy” moral blameworthiness ascribable to defendant.

Any doubt jury about whether the understood it was to consider defend- condition, general history ant’s and mental as well as his character true, is is as determining penalty, by both counsel’s It dispelled arguments. observes, defendant jury’s (k) that the once the factor prosecutor suggested inquiry was limited to defendant’s evidence extenuat- determining whether references, however, ed “the gravity the crime.”13In numerous other prosecutor gave jury jury that the opposite (and correct) message should all properly consider of defendant’s character and mental condition evidence,14 that, whole, but on the the evidence on that not' argued point was whole, persuasive, was entitled to little On the we are satisfied weight.15 that the prosecutor authority left the with a of its proper understanding to consider defendant’s character and “mental condition” evidence as mitigating circumstance under factor (k). if

Even we were to assume that the left the with an prosecutor evidence, in “ambiguous” message about its of defendant’s consideration light of counsel’s we not conclude the arguments, would defense misled about its factor (k) jury’s inquiry. Explaining application factor . . (k), defense counsel told the . . . . “duty it had a consider anything that As or an individual feels is [juror] appropriate. [it] feel[s] []]] an You . . . .” example: are allowed to consider or extenuation mitigation Counsel went on to preview mitigating the court’s definition of circum- stances, and mercy your stressed: “So the enters deliberation concept [in ... penalty phase it does in the this although] guilt phase, not [fl] 13Discussing jury’s any (k), prosecutor consideration of factor stated: there “[I]s thing you try say yourself going about the crimes that can think of—sit and I’m down anything think of regarding favor he committed those crimes which are how [defendant’s] you extenuating, nothing extenuating won’t be able to do it about those because there is crimes.” character, prosecutor jury, judges 14The informed the are of defendant’s his histo “[Y]ou ry, him, sympathy and what pity should be done with him. are entitled to feel for [][] [Y]ou jury, jury may sympathy for him.” Later he told the law is that take into account “[T]he you acting sentencing phase, you judge because are at the are like the factors for background, probation report, guy’s you looking who looks at the his covers the entire are at record, any factors, you you looking looking workup, social are at his mental are crime, you the factors of deciding and then are should be done with this man. And what you doing. you wrong say sympathy part that’s what are So to at least is of it and would be not character, Odie, background, talking we’llconsider it We are about Jim his what [][]... (Italics added.) he did.” Allen, (See, proper approach e.g, 15This prosecutors previous has been taken cases. p. 1276.) 42 Cal.3d at

419 for a defendant or sympathy pity may . . . consider jury properly phase from execu- the defendant and mercy spare to show determining in whether his excusing about talking I’m not (k)] factor ... So tion. [under [H] to make a trying and conduct, his conduct considering about talking I’m is circumstance extenuating an there is determination whether Counsel then be executed.” him to mind not to your require sufficient accident, only concluded life before his 1973 defendant’s described his brain did of large removal of a part after the accident and a violent truly person. become consider defendant’s should counsel argued

Thereafter defense offenses) of the only not at the time (i.e., generally mental condition you this: are must consider determining appropriate punishment: “[Y]ou August a man in this conditonl to death going put [1f] [A]s that is the person man he before. And not the same was [defendant] After summa- he is or is not to be executed.” you must decide whether who it established testimony concluding the various defense witnesses’ rizing value,” for a his with a argument plea he concluded “redeeming defendant’s rather than death of life possibility parole sentence without “[b]ecause ... “humanity his relating have heard” considering everything you mandate in justice life need not There could be no [,] total be taken. [U] were altered whenpart execute a whose human capacities man fairness mitigating kind his brain was removed. The law envisionsthis [1f] factor whether weight must be in the terrible decision given significant as one that ” is or allowed to (Italics added.) man killed live. absence of an “expanded We conclude the was not misled instruction, correct under that it in fact left with the (k)” factor condition, char and his that it was to consider defendant’s mental standing (Allen, acter, in determining appropriate penalty. as factors mitigating Brown, 512, 544, 1222, 17; fn. 1276; 42 Cal.3d Cal.3d supra, supra, Brown, 943-944, at pp. v. 479 U.S. at L.Ed.2d supra, p. [93 California J., id., & 559-560 at 549-550 (O’Connor, conc.), pp. 107 S.Ct. at p. 842] 943-944, 844 & 107 S.Ct. at pp. L.Ed.2d at 945 & pp. 849] [93 952-953, id., J., 561-563 L.Ed.2d at pp. & (Brennan, dis.) pp. J., (Blackmun, dis.).) pp.

S.Ct. at 850-851]

2. Brown here, we conclude arguments

Based on the instructions and the contrary interpretation not misled to our reasonable would have been Brown, First, is no 40 Cal.3d 512. there “weighing process” weighing the nature of the to believe the was misled about reason 8.84.2. In to that CALJIC No. addition called for under former process instruction, standard the court jury: determining told the “In whether or not the aggravating outweigh mitigating circumstances the circumstances . . . you are not to count simply the number circumstances and decide up of whether there are more one than the other. The test is the relative final number, weight the mitigating circumstances not relative One the [fl] circumstance alone can be number by you outweigh any to balance or found aggravating circumstances.”16

Nor can we conclude on this jury record that the was misled about its itself, factors, responsibility to for statutory decide based on the whether death is appropriate for the defendant.

This is not the of case in which the was “left . . . the type with impression that its responsibility merely weigh aggravating mitigating factors without regard to its view of the appropriateness alternative penalties, and that it was to return a sentence of death ‘required’ without, if ‘aggravation outweighed mitigation’ juror’s or even each despite, personal evidence, conclusion from the about whether a sentence of death was appropriate under the circumstances for the offense and offender.” (Allen, Cal.3d at p. italics the court original.) Although 8.84.2, delivered the unadorned “shall” instruction former CALJIC No. we above, note it also correctly instructed the as set out and that it additionally instructed the jury that “the verdict of death is the individual Moreover, opinion each juror.”17 (Italics added.) the although prosecutor three times emphasized the mandatory instruction’s in a language potential ly manner,18 misleading he also correctly informed the on numerous whole, 16Nor respective arguments, did counsel’s each viewed as a mislead on this the point. contrary, To the both counsel proper prosecutor, echoed the court’s The instruction. although point having one interpreted apply “counted” the various factors as he them to case, clearly jury, “you this just told the up are not to add . . . number of factors. [][] your own may minds one weight factor be of such that it overwhelms two or three other factors or paramount position greater assumes a anything among than else that’s listed you “Now, factors Similarly, that the law instructs in.” defense counsel stated: what the law says you weigh about how terribly says you the factors is important. weigh . . . The law [][] factors, you don’t count them.” 17Similarly, jury’s opinion verdict form recites: “The verdict of death is the individual juror.” of each jury: 18Hetold the “The aggravation outweigh mitiga law is that if factors in the factors you impose tion penalty. language very says must the death is clear. ‘shall.’ That It [j|] Conversely means must. You mitigation outweigh have to. No discretion. if the factors in must, And, aggravation, you you the factors in impose imprisonment. then that is shall life Later, again, there is no deciding' discretion in that area.” he stated: decide the case “[Y]ou do, aggravating outweigh]] [jj] they you whether or not the mitigating, impose If don’t, penalty. they you really death straightforward.” Finally, If in don’t. It’s rather he jury: you formed the “If aggravating follow the law . . . if and follow mandate that you outweigh mitigating, you factors impose penalty, shall the death then that’s what aggravating shall do. And the outweigh mitigating circumstances We circumstances.” individually whether to decide responsibility its occasions of discretion penalty.19 the “appropriate” death is of jury’s understanding about the above, have had may we any

As doubt counsel’s by defense dispelled is regard in this duty its and responsibility and re- duty of its jury informed correctly and He argument. plainly deliberation, stated, is simply your real of “The focus sponsibility: [/s] extraordinary remedy at the Is this necessary death penalty [defendant\. for . . . kill [([]Should we that must be done? citizenry something of hands our I you say factors have to all of those considering him? At the end of fl|] die, the evidence. weighing and that is that that man should believe ...[][] after of this is importance a decision given that has to weight [T]he as a human conscientiously I believe of factors what do at all those looking sufficient? parole possibility Is not life without being must happenl [fl] kill or fix his sentence the form your signs When foreperson [defendant] a decision that each one it has to be at life of parole, without possibility must not be execut- cannot and you individually believesin. []}][Defendant] heart, believe it your own own conscience you your ed unless each you a time I urge give must And if ever there was when happen. [1J] that instruction that talks about the individual defendant the benefit of (Italics added.) each it is now.” juror, opinion of whole, not misled about jury the record as a we conclude was Viewing law, under the 1978 and that no of its discretion scope sentencing error occurred. (k)” “factor or “Brown”

B. Other Asserted Errors Findings Circumstance Special

1. Excessive Multiple-murder above, to find at the erroneously allowed As noted two phase, as factors at the guilt phase, aggravating penalty consider 190.2, instead of (a)(3)) subd. (§ circumstances “multiple-murder” special Allen, recently although one. We held in Cal.3d supra, numerous, only rather than one erroneously to consider allowed Allen, very prosecutor page 42 Cal.3d at made similar state- note that the ments. character, judges prosecutor jury, 19The are the of the defendant’s informed the “[Y]ou ultimately history, . . . what’s to' be should be done with him. . . . what [Y]ou decid[e] Later, emphasizing done that the should consider defend with defendant.” while factors,” deciding background prosecutor are what ant’s and “social stated: “[Y]ou jury, you doing.” are He then told the should be done with this man. And that’s what man,” you of re with this it should consider his lack decide what should be done “[w]hen job appropriate penalty by telling was to “decide the morse. He concluded that its punishment” for defendant. circumstance,” “did not consideration permit this “multiple-murder special and relevant to the admissible that was not otherwise evidence (Id., here did not exploit at The p. 1281.) prosecutor decision.” penalty instead but closing argument, circumstances at of the special “inflation” violent and of the crime and defendant’s on the circumstances focused Allen, we death verdict. As toward a militating as factors past criminal did circumstances special “inflation” of the confident that the improper are case, error reversal not, requiring facts of this amount prejudicial on the id., 1281-1283.) (See pp. of the penalty.

2. Remorse statements that various objection, without prosecutor argued, for the he lacked remorse after the crimes showed by made defendant reasons, of none this error for a number Defendant claims crimes. determined, which, merit. have has we “kind of defendant killing Aguilar, disclosed that after

The evidence act, bitch die. The and “The bitch wouldn’t complained, about the laughed” that reminded the At closing argument, prosecutor wouldn’t die.” fact, but, couple have a had never remorse “we expressed defendant one of the was the among in the other direction.” Chief those items things murder, ended: which by shortly defendant after the Aguilar notes written Me, a, The Punk—.” Loner. . . . —I am gone—Find am Rebel & a “[I] attitude I concluded: “That think characterizes prosecutor [defendant’s] Callous, cold, killings remorseless to finish in this whole crime. from start way.” in my you getting reason and are except revenge for no good 589, 622 Cal.3d recently (1988) held in v. Ruiz 44 People As we [244 have 200, defendant 854], argument 749 P.2d the prosecutor’s Cal.Rptr. was not error. lacked remorse Mitigating

3. Factors Nonapplicable the instruc have from Defendant claims the court should deleted “inapplica that were and factors statutory aggravating mitigating tions the entire and that it error read to ble” under the evidence to v. Ghent People this statutory recently rejected argument list. We have 82, law], 739 P.2d Cal.Rptr. 43 Cal.3d 776-777 (1987) [1977 1250] [239 Cal.Rptr. 104-105 v. Miranda Cal.3d People P.2d 1127] [1978 law]. Mental Emotional Disturbance

4. Extreme 8.84.1 to consid No. to CALJIC pursuant was instructed er, while not the offense was committed factor “Whether or (d), under distur- or emotional of extreme mental the influence under defendant was consider- by limiting 190.3, claims that factor Defendant (d).) (§ bance.” not permitting emotional disturbance “extreme” mental or ation to the constitu- violates the instruction considered lesser disturbances be weight give permitted must tional requirement record, character, may be offered which or offense of a defendant’s aspect in our discussion of error rejected this claim We have mitigate punishment. error. (k)” asserted “factor Factor Aggravating as an Battery 5. Use trial, incident of the 1971 introduced evidence At the guilt in connec- That evidence was presented at a man. shotgun which he fired acci- that before the 1973 automobile testimony suggesting tion with other kind, wife testified dent, his former responsible; gentle defendant was shooting. the 1971 before the accident was that the sole incident of violence conviction showing At trial a certified document defendant’s penalty was introduced battery shooting misdemeanor for the 1971 incident then the testi- objection. presented The prosecutor prosecutor without victim, Thereafter the court of the described the event. mony shooting who mitigat- 8.84.1 aggravating instructed to CALJIC No. on the pursuant jury Factor to by jury. (b) permits factors to be considered ing activity by the defendant consider or absence of criminal presence “[t]he or the express involved the use or use of force or violence attempted which 190.3, (b).) threat to or violence.” factor implied (§ or use force events) other shooting (among The court further instructed that the 1971 it could be considered “beyond had to be a reasonable doubt” before proved instructed on the by the as an factor. The court then jury aggravating likely great produce elements of “assault” and “assault means of force penalty phase as well as crimes to the other bodily injury,” other related which defendant had It no instruction on the lesser crime for gave evidence. battery). (misdemeanor been convicted for the 1971 incident find, as error for the to be allowed jury Defendant asserts it was factor, in “more serious” than the an that he conduct aggravating engaged in 1971. had been convicted battery misdemeanor for which he was not theory that the prosecution To the extent his claim rests on evidence, about the circum testimonial jury, through entitled to inform the v. (See activity, People the claim is meritless. stances of the criminal prior 741].) 750 P.2d Cal.Rptr. 754-757 Melton Cal.3d Moreover, way even in assuming jury it was error to instruct the such a that it might have concluded the 1971 incident was to be evaluated as constituting crime elements other than those of misdemeanor containing convicted, battery of which defendant had been on this record we cannot First, conclude such error was that the evidence prejudicial. we reiterate disclosing the circumstances of the 1971 incident was before properly Second, incident, jury. addition to in- the 1971 was properly on, structed and hence (b) (c) considered under factors aggravation 190.3, activity section circumstances violent criminal following felony convictions: defendant’s 1972 first armed degree burglary (while with a firearm); robbery theft; his 1976 armed his 1980 burglary and auto robbery victim; which he inflicted serious and his armed injuries on a robbery shortly of a milk store before the Swartz murder. view of all this convictions, aggravating evidence of violent as well prior felony crimes and 190.3, as the circumstances of the underlying capital (§ (a)), crimes factor we conclude that error in any the 1971 inci- instructing jury regarding dent could not have affected the verdict.

6. Waiver to Be Right Present deliberations,

After the commenced its the court penalty phase asked for a if stipulation that the jury any evidence be requested brought instructions, it or if requested any it to the may matter be sent “without our having get together back and de again.” The prosecutor fense counsel so stipulated. joined Defendant was he not asked whether The stipulation. court stated to counsel that if there questions were of substance counsel (and called. apparently defendant) would be instructions, subsequently requested a list of probation reports, the evidence and witnesses from the all the penalty and of guilt phases, records, murder, medical the two notes defendant wrote Aguilar after the and the testimony of a by witness. There was an counsel express stipulation silent, as to the testimony. witness’s Although the is it is undisputed record that the received the matters. requested

Because there is no the showing any improper furnished with matters, event, we no any discern error. In error we conclude assumed was nonprejudicial.

The judgment entirety. is affirmed in its Panelli, J., J., J., Kaufman, J., Arguelles, concurred. Eagleson, and MOSK, in there J. I concur the I am of that judgment. opinion the occurred no error one prejudicial going guilt, special that at least

425 valid, no there occurred and that is finding unquestionably circumstance going penalty. error prejudicial however, my belief express I feel compelled because separately,

I write majority suggest. the error much closer than that the of Brown is question Cal.Rptr. Brown 538-544 v. Cal.3d (1985) (People [220 Brown v. nom. 440], grounds P.2d revd. on other sub California 837].) U.S. 538 L.Ed.2d S.Ct. former CALJIC the in accordance with

At trial the court instructed in closing Three times mandatory and its formula. sentencing No. 8.84.2 poten- instruction’s the and argument prosecutor emphasized exploited tially misleading language. “The in its law argument the of his the stated: beginning prosecutor

Near course, forth a set series through Legislature, wisdom our State has aggravation is that you factors for to take into account. The law iffactors outweigh mitigation penalty. the must the death you impose factors very You to. No says is clear. It ‘shall.’ That must. have language discretion, means if the the factors Conversely mitigation outweigh factors [fl] must, then life aggravation, you you imprisonment. that is shall impose And, added.) there no discretion in area.” again, (Italics is on, the then at conclu- prosecutor

Later the theme: “And picked up case, factors, sion the case your you decide going through fl|] deciding mitigating. whether or not the aggravating outweighed If do, It’s they you really that impose they the death don’t don’t. penalty. you If straightforward.” (Italics added.) close, “If yet again: Toward returned to theme prosecutor this you Judge follow the law that the will go through and factors penalty you you light and in the thereof instruct are astute examiné the case follow factors you outweigh the mandate that if the aggravating you you that’s what shall mitigating, shall death then impose penalty, do.” in- only

It is the court’s other argument because defense counsel’s disclosed the (which majority structions set forth length) plainly and of the and discretion proper scope jury’s sentencing responsibility I able to conclude thereby neutralized the comments that am prosecutor’s the in this not No. 8.84.2. jurors case were misled former CALJIC I as above my majority’s analysis, of with the stated disagreement spite in the I Accordingly, find no reason with its concur disagree disposition. judgment.

BROUSSARD, I concurin the affirmance of the convictions and the J. circumstances. affirmance of I findings special dissent from the of the penalty.

The evidence showed that a substantial brain had defendant’s portion herein, been surgically removed to the events evidenced and that there prior was a defendant’s character change surgery and conduct following from a kind and gentle person who was and hardworking responsible violent, person who became unpredictable ultimately and and who went berserk. Neither the instructions of the court nor the of counsel arguments properly advised the how to view A properly this crucial evidence. jury might instructed have concluded that the surgery causing brain in behavior was a change substantial factor and defend- mitigating spared ant’s life.

Although arguments instructions and. de- prosecutor evidence, fense counsel did not preclude consideration of the mitigating they likely misled the to believe that the brain and its results surgery could not be a factor. At best the instructions and mitigating arguments misled the to believe that the brain in character surgery and the change only could be a mitigating they factor if capacity defendant’s impaired appreciate criminality of his conduct or to the to conform his conduct law at the time of the offense.

The jury should have been advised that the brain and its results surgery could be considered a factor whether defend- mitigating they or not affected ant’s limitation capacity the time of the offense. on the The improper jury’s consideration of the evidence mitigating may well have precluded factor, so, finding any the result mitigating urged by as If prosecutor. was that the to return a under the compelled verdict of death mandatory instruction factors limiting mitigating specified to those statute.

“This limitation on jury’s consideration mitigation of evidence penalty case capital contravenes the mandate of the federal Constitu- Ohio, tion. In Lockett v. 438 U.S. Court held that Supreme sentencer, ‘the Eighth Fourteenth Amendments in all require that the case, but the rarest kind of not as a capital considering, be from precluded mitigating factor, any of a aspect defendant’s character or record the circumstances of the offense that the as a basis for a proffers sentence less than death. . . . . . statute that the sentenc- prevents [fl]. [A] er in all cases from capital giving weight aspects independent mitigating of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death will penalty (Id. at severe may penalty.’ call for a less in of factors which imposed spite 604, 605, Davenport v. omitted.)” (People fns. italics in pp. original, 794, 247, 861].) 710 P.2d 41 Cal.3d Cal.Rptr. [221 law, this court the validity penalty In the death uphold order to to to permit Code section 190.3 construed factor of Penal (k) character, of the aspects or other family background the general consider Cal.Rptr. 877-878 34 Cal.3d Easley (1983) defendant. v. (People circum to referring factor (k), We that 813].) recognized P.2d crime, by a be understood might extenuate of the gravity stances which to circumstances of the crime and not only to relate to the gravity character, aspects or other family relate the general background future, we directed in the misunderstanding defendant. In order to avoid 878, fn. (Id. p. instruction. juries given clarifying the future be 10.) instruction, case, and receive a clarifying the instant did not Easley.

thus ambiguity was left recognized with erroneously (k) and stated that factor prosecutor unequivocally there of the crimes and inapplicable because it related to circumstances the crimes. or nothing mitigating about commission extenuating He never retreated from this position.1 that factor challenge

Defense counsel did not the prosecutor’s position discussing factors only related After (k) the circumstances of crime. conviction, circumstances violent (b), the other (a), the of the present crimes, convictions, extensively (d) he factors and (c), prior discussed at the time (h) together they condition because both related to defendant’s After He inapplicable. offenses. then said that next factors were factors, the in- briefly he discussed discussing including (k), those factor sympathy. consideration of defining mitigating structions and permitting inter- conceivably could be He then made an statement which ambiguous likely be understood as relating as to factor but more would preted (k) using statutory 1The numbers rather prosecutor through each of the factors in order went That, (j), participation. “Accomplice or minor than letters. When he came to factor he stated: goes number 5. more or less number with really “Obviously, accomplice participant, fairness I Jim a minor but Odle was not an you because, just say obviously, your really verdict apply will that that this case doesn’t major participant. found he was the extenuating gravity regarding the of the crimes. “Other circumstances is, say to anything you “That is there the crimes that can think of—sit down about yourself he commit- going try anything regarding Jim how I’m to think of Odle’s favor you there is noth- extenuating, ted able to do it because those crimes which are won’t be ing extenuating about those crimes.” made on arguments the basis of the instructions and defining mitigating permitting sympathy.2 may

Defense counsel’s not be as ambiguous argument eliminating viewed the jury that the its danger (k). jury by misunderstood factor verdict obviously rejected defense counsel’s and even when defense argument, counsel’s statements are clear and in the unambiguous clarifying meaning instructions, jury it is to assume that the that pure speculation accepted portion counsel’s while unidentified other argument rejecting parts. When, case, as in the jury only instant is instructed the words of statute, the that factor prosecutor erroneously (k) unequivocally argues crime, only relates to the circumstances counsel’s state- and defense ment is as to whether the brain results could ambiguous surgery its (k), relate to factor it is unreasonable to that defense counsel’s conclude statement ambiguous shows that was not misled.

While the brain surgery length by evidence was discussed at both the counsel, prosecutor and defense neither ever that factor (k) stated only and the applicable, conclusion is that the was misled reasonable into believing that the brain surgery (k). evidence did not relate to factor The effect of this or error limit the misunderstanding improperly was to jury’s consideration of the brain evidence. surgery discussing 2In argument, majority defense page counsel’s 419 substitute fac “[under (k)]” tor for “in legal the other circumstance which is not a which I have italicized in excuse” quotation Although may ambiguity, below. there is be some the substitution not warrant ed. discussing (j), After factor defense counsel stated: “The final is other circum- factor mitigates. stance which extenuates or “Now, duty really what penalty anything has the to do in a that case is to consider they feel or an individual appropriate. feels is example: mitigation Judge “As an You are allowed to consider or extenuation. And the you ‘mitigation’ will tell penalty punish- is an defined as abatement or diminution of a or ment. “Mitigating justification circumstances are such as to not constitute a or excuse of the may in question, mercy extenuating offense but which fairness and be considered as or re- ducing degree culpability. of moral mercy your concept guilt “So the phase. enters deliberation which it does not in the “You will be Judge you you previously instructed as follows: The tell will were guilt phase sympathy pity your of this trial that or for a defendant shall not influence consid- eration of the evidence. may “In penalty phase properly sympathy pity this the of the trial the consider for determining mercy a defendant in spare whether show from the defendant execution. That is different. excuse, legal talking excusing “So in the other circumstance is not a I’m about which not conduct, talking considering trying I’m about his conduct and to make determination your extenuating require whether there is an that is mind not circumstance sufficient him to be executed.” defend- as to whether argued counsel Both the and defense prosecutor However, (h). under factor be loss of his brain could considered part ant’s of the offense time of the or not “at the factor is limited to whether (h) to conduct or criminality of his the of the defendant to capacity appreciate of as a result was impaired the of law requirements conform conduct to evi- defect, was no There effects of intoxication.” mental disease or or the he killed Officer the time at capacity impaired dence that defendant’s was defendant’s as to conflicting whether Swartz. evidence was sharply the of the Aguilar time to or capacity impaired conform appreciate had and, out, trial jury guilt at the as the the killing, prosecutor pointed he not did to the extent rejected the claim that was impaired doing. know what he was conform jury

If the defendant’s capacity appreciate concluded that left no mitigating “at the time offense” not it was with impaired, discussed factor to the and defense counsel prosecutor consider. Although the instruc- sympathy the brain and its in connection with surgery results tion, by as a factors the trial court sympathy is not one of the enumerated the statu- only potentially jury weigh factor. The was directed mitigating factors, tory the of any presence and the factor—with mitigating absence possibili- clear of life aggravating a verdict without preclude factors—would ty of v. 481 U.S. 398-399 parole. (See Dugger Hitchcock [95 347, 352-353, L.Ed.2d 1824].) 107 S.Ct.

Moreover, if to appre even the concluded that defendant’s jury capacity ciate or the impaired, conform at the time of the offense was Aguilar is limited not be entitled to mitigating factor to that and would impairment the full if under factor might consideration and it receive considered weight (k). an life because Obviously argument spared that defendant’s should life had in the already cruelly argument treated was a much stronger him only one the circumstances than an based extenuation of argument on 163, 168, two murders. fn. 1 (See v. 36 Cal.3d People Lanphear (1984) 122, 680 Cal.Rptr. P.2d 1081].)

I of a argument clarifying conclude that the the absence prosecutor’s instruction circumstance improperly precluded finding mitigating affected defend- jury surgery unless the found that brain and its results the ant’s the capacity at time of offenses. from crucial

The error is in that it took prejudicial probably was instructed issue evidence. The presented mitigating strong it out- “shall” if circumstances impose penalty aggravating death If that defendant’s weighed concluded mitigating circumstances. killing, either during and conform was not capacity appreciate impaired obviously strong aggra- because there were was automatic penalty the death weigh against no circumstances mitigating vating circumstances during impairment there was some If concluded that them. mitigating considering nevertheless limited it was Aguilar killing, offense,” than consider- rather time of the effect to the “at the impairment from resulting character in defendant’s change as a factor ing mitigating his brain. a substantial portion removal of removal of sub- that the have found jury might A instructed properly character in his change brain and the stantial of defendant’s portion was hard who gentle person conduct from kind following surgery mitigat- person and uncontrolled to a violent responsible working there is a my view compassion. under factor and warranted ing (k) have concluded instructed would that a properly reasonable possibility penalty. the appropriate parole that life without possibility Broussard, June 1988. was denied rehearing for Appellant’s petition J., be granted. should petition was of the that the opinion

Case Details

Case Name: People v. Odle

Court Name: California Supreme Court

Date Published: May 19, 1988

Citation: 754 P.2d 184

Docket Number: Crim. 23254

Court Abbreviation: Cal.