*1 23538. Feb. S004608. Crim. No. 1989.] [No. PEOPLE,
THE Plaintiff and Respondent, ROBERTSON, Defendant and Appellant. EDWARD ANDREW *9 Counsel J.
Timothy Foley Weinheimer, and Gail R. under appointments Court, Supreme for Defendant and Appellant.
John K. General, Van de Attorney White, Kamp, Steve Chief Assistant General, Attorney Millar, Jr., Corona, Jr., Frederick R. Rudolf W. John Cutler, Carney General, and Maxine P. Attorneys Deputy for Plaintiff and Respondent.
Opinion
death (Cal.
from a
PANELLI,
appeal
judgment
an automatic
This is
J.
*10
1239,
Const.,
VI,
Code,
the 1977
11;
(b))
under
imposed
Pen.
subd.
art.
§
§
316,
Code,
190-190.6, Stats.
ch.
Pen.
(former
law
penalty
death
§§
§§
1256-1262,
4-14,
1978))1
Elec.
follow-
by
(Nov.
Gen.
Prop.
pp.
repealed
death was
after
initial
of
judgment
the issue of
an
penalty
retrial of
ing
77, 655
in
After trial a found defendant circums charged and nine special first murders found true degree two death; judgment at the entered fixed the court jury penalty tances.2 The the On we affirmed jury’s findings. appeal the verdicts and accordance with the findings, but reversed special and the circumstance judgment guilt I, 60.) 33 3dCal. at (Robertson supra, p. as to judgment penalty. bench, at and entered the the court fixed the death After retrial to This accordingly. followed. judgment appeal judgment. As will we affirm the appear,
I. Facts defense, and the jury
Pursuant to a waiver of trial the prosecution The trier of fact. judge retrial of the was before the court as penalty phase had the initial trial. judge on retrial not the who over presided transcripts court of the were by stipulation parties prior Before the I, 33 testimony in this action. In the words we used in Robertson tale. testimony following Cal. 3d told the prior women, and Karen Ann Litzau “This case arises out of deaths two arrest, Gloe, his Kimberly Shortly gave 1977. after defendant October homicides, detailed, and then reenacted confession to both tape-recorded The and filmed film at the scenes of the crimes. killings tape-recorded on evidence confessions were admitted trial. additional Complemented following record facts. by the discloses presented prosecution, indicated, statutory Penal Except as all references are Code. otherwise multiple degree jury special allegations first murders The found true the circumstance wilful, 190.2, (former (c)(5)), premeditated both of which were and deliberate subd. § robbery (former during attempted were committed the commission or commission 190.2, 190.2, 190.2, (former (c)(3)(i)), (former (c)(3)(ii)), kidnap rape subd. subd. § § § 190.2, (former (c)(4)). (c)(3)(iii)), of torture subd. subd. and involved infliction § 20, 1977, October defend- early “In the hours—2 or a.m.—of morning on a hitchhiking Karen Litzau as she was stopped picked ant up only freeway At first intended San Bernardino. defendant on-ramp then, were to have sexual driving, Litzau a ride but as the two decided give neck, refused, arm her right with her. When she around put relations have they to her told her were going knife throat and pressed intercourse. road, on a freeway driving
“After to a secluded area dirt leaving names—‘crazy, the car. When call him began Litzau stopped bitch, asshole, began son of an in the book’—defendant everything ripping *11 off her clothes. Litzau if he kill he going asked defendant was her and said ‘no.’ car,
“Defendant then Litzau on placed the hood of his to have intending however, calling intercourse. When she started him again, names ‘yanked her off the car and started stabbing her.’ confessions,
“At one point his only defendant stated that he remem- bered stabbing Litzau twice and that ‘[m]y mind went blank. The next thing I I freeway knew was on the and my I had blood Immediately on hands.’ thereafter, however, detail, defendant described the incident considerable recalling that he had cut Litzau’s and throat stomach and had stabbed her heart, confession, repeatedly back and In the course of his vagina. defendant also admitted that at one point during stabbing he stopped dead, momentarily, thinking Litzau was but when he discovered that she alive, was still he cut her throat. scene,
“Before leaving defendant tried off to cut a breast of Litzau’s body lifeless but failed because his knife was too He dull. took several pairs panties, cosmetic case and an engraved cigarette her lighter from suitcase, body urinated on the and drove At away. different in his points confession defendant alternatively stated that he decided to kill Litzau when she names’ ‘when she started saying that she was going ‘call[ed] [me] tell me.’ on body
“Litzau’s found next morning. An autopsy revealed more than 170 knife her body. wounds over entire later, night
“One about week and half Kimberly defendant picked up Gloe as she was her offering services as a San prostitute on a street in car, Bernardino. After she entered knife and drove to pulled a secluded area. He brought had his knife because he wanted sex. When away. knife He necessary, he put force was not
Gloe told him that in various sex acts. they engaged the car and stopped “Thereafter, me before and that she ‘had a guy rape Gloe told defendant him, him, you, I on might couldn’t find they squeal I on but squealed that, she you?’ respond- ‘You wouldn’t do would When defendant said too.’ ‘Yeah, and clean ed, then out of the car to her clothes got get I would.’ Gloe herself off. knife, the car and started followed her out of grabbed
“Defendant body, all over her stabbing in the stomach. He remembered stabbing her breasts, cutting [3] her throat and stabbing her in the stomach, vagina, leaving removing her intestines, his knife embedded cutting off her there. T to do it the he stabbed her in the because wanted vagina He stated that revealed 120 stab way autopsy separate I did Karen.’ A subsequent same and incisional wounds. dead, ‘[b]y to break her stand- legs
“After Gloe was defendant attempted left with body. on them and then urinated on the He ing again pulling *12 kill her bra and Asked if he had intended to panties. her address book and T any he first her defendant stated that didn’t have Gloe when picked up, going intention her until she started she was to snitch on killing saying . . .’ me. death,
“A a who had Gloe into days get few after Gloe’s woman seen car the car in a station and notified the spotted parked gas defendant’s traced the car to defendant and arrested him. At the time of his who police, arrest, Litzau’s was found in his With defendant’s cigarette lighter pocket. book, consent, the officers searched his and found Gloe’s address apartment Litzau’s cosmetic case and—-under his bed—numerous items of women’s underwear, to each of the victims.” including belonging (Robertson several I, 31-32.) Cal.3d at pp. case-in-chief, set out to show the of death prosecution its
was for defendant. At the initial trial appropriate penalty phase that defendant’s was re- culpability defense had to demonstrate attempted or In evident of the case it anticipation duced mental disease defect. here, the defense to called several present prosecution expert expected witnesses.
The and two prosecution experts—four psychiatrists psychologists—tes- disorder, tified in as follows: defendant had a character or personality sum point opinion sharpened At I notes: “Defendant had his knife between this the Robertson (33 p. 2.) the Litzau and Gloe homicides.” Cal.3d at fn. character disorder variously described as or mixed with passive-aggressive control; emotionally and he was immature impulse antisocial features poor he and was intelligence; insight was of lacked average and borderline low himself; sexually he received only aggressive, gra- concerned was and as a child inflicting feelings inadequacy; tification from had pain he emotional trauma. The slowly prosecution had and suffered developed mentally a were in conflict to whether defendant was disordered experts offender; they sex were unanimous that defendant did not suffer from mental defect and disease or was not affected stress disor- posttraumatic der. further evidence in penalty, prosecution
As introduced aggravation evidence of defendant’s Ernest F. testified one in crimes. prior night 1973, when he a 19-year-old was enlisted man in the Marine he Corps, went Yuma, Arizona; out in bar drinking at a he met man who introduced “Tex”; himself as he “Tex” bar in went the desert outside of hopping; Yuma, him, “Tex” attacked knife placing a to his neck and him jabbing “Tex” weapon; forced him to submit oral copulation as he held the knife at his groin jabbed; testicles and “Tex” repeatedly threatened to mutilate him and in him; leave him the desert also threatened to kill he offered no resistance to the attack and managed soon escape; reported incident to police, but charges were never filed. At trial he stated defendant was the man he had known as “Tex.” P.
Kim testified that one night 1976 she standing lot parking Ontario, at a truck California; behind, stop man her from approached knife to her put throat and forced automobile; her into his a citizen’s band on; radio was he drove her to a remote area where he compelled her to *13 disrobe and then cut off knife; her underpants with his he her told he hated women and he repeatedly her; said was going to kill he her beat about the face, head, breasts; and he violated her with a Coca-Cola bottle until her bled; vagina he lit put cigarettes into her vagina “cry baby” and called her a when she complained of he her pain; orally forced to copulate him; he took a of pair underpants from her bag, saying they were for a collection he kept; crackled, when citizen’s band fled; radio he became distracted and she he cruised around the for area five or ten minutes he shouting threats that her, kill would she good but made her escape reported and the incident to She police. identified defendant as her assailant. Finally, Catherine A. testified that one night in 1977 a man a driving wagon station her approached as she was walking a street in along San Bernardino; he offered services; her sexual pay for she accepted and vehicle; said, entered the the man pulled a and “All gun you right, fucking now,” bitch. got you whore I’ve on; and drove when they arrived at area, wagon in the station and man her to the back of get told remote her; she said he had to kill when asked clothing; her he repeatedly remove she replied would to the she go police; he otherwise she why, responded her until mollify him; he sodomized generally and attempted would not bled, face; in her him he orally her to and masturbated copulate she forced obsession; he took her regarded underpants, her breasts and them beat he told eventually, he her to he wanted them for a collection saying kept; off, so, car; he but then turned the began when did drive out of she get cemetery, hid in he and down about back; nearby up as she drove car incident at left; and did not that time eventually report 20 minutes she trial, her as were never filed. At she identified defendant assail- charges and ant. case-in-chief, was the defense endeavored to show death not the
In its childhood, mildly men- defendant had traumatic penalty: appropriate retarded, in had low and and was essence a tally intelligence poor judgment, man; at the crimes 12-year-old boy body in the of a the time of he was military disorder as a service in by affected stress result posttraumatic by adjust- Vietnam and brief reactive had made an excellent psychosis; incarceration, sincerely and would ment to had become behave religious, in and pose danger well no others. prison evidence, through To its the defense introduced defend- support position, witnesses, life concerning ant’s mother sister and defendant’s expert shows a traumat- question. before commission the crimes The evidence labor; aby development ic birth difficult and slow preceded prolonged divorce, father, by by his walking; parental kidnap followed speech mother, alternating ultimate return to his and thereafter care between a disturbed mother and a strict domination a cruel and grandmother; sister; difficulty and academic in school. At nine overbearing social years defendant was examined who him age, neurologist, diagnosed mildly mentally retarded with brain possible damage. served then enlisted years
Defendant two the Job in the Corps Army. military his service tours of During eight years duty he did two Vietnam, States, United totaling years. almost three On return to the difficulty had to the less structured environment adjusting *14 military; he from nightmares and suffered peacetime experienced depres- years In 1973 he married a woman his who had children sion. senior divorce, ended marriage. quickly a The union in as defendant was previous unable shoulder and was in mental and responsibility to closer emotional children wife. level to the than to his in Army,
In 1975 defendant to reenlist but was refused. attempted old, he unable to Thirty years returned to his mother’s home. He was learn In he Kim P. and sent to job. or to attacked was usable skill hold year he Karen Ann Litzau he released. Later that killed jail. 1977 was Kimberly Gloe. nine, Hunt, age defendant at neurologist Dr. who had examined mildly men- testified defendant had brain and was organic damage suffered treatment; from no tally retarded and not amenable to he to suffer appeared disease, mental was specific plain nor there psychiatric explanation behavior, may have been commission of although psychotic during in Dr. definite crimes Hunt believed defendant had suffered question. of his mental functions and therefore not be sentenced impairment should to death. Postman,
Dr. Robert a psychologist, testified defendant was of below average intelligence, mildly was probably mentally retarded and perhaps had an antisocial at personality disorder; the time of the crimes in question he was brief suffering psychosis from reactive in rooted in part deep hatred of women. Dr. Postman believed defendant pose danger would no in the others setting structured be prison productive would there. Wulbrecht, S. Thomas director of the Vietnam Veterans Center Outreach Riverside, in testified about defendant’s experiences Vietnam and their effects on his psyche. Wulbrecht stated defendant exhibited post- chronic traumatic stress disorder overlaid an disorder; with antisocial personality posttraumatic stress disorder could lead to a dissociative state wherein the subject would revert to the mode” “survivor of combat in an “altered state of consciousness”; the commission of the question crimes in was consistent with state; behavior such a it was also consistent behavior under brief reactive psychosis.
As evidence defendant would pose not if he danger others were sentenced to life imprisonment without possibility parole, the defense presented testimony of three correctional officers and in- two fellow mates of defendant. Sheriff
Deputy Coyle Roger testified that during defendant’s confinement county rehabilitation center he conducted himself well and never caused any disciplinary on problems; Coyle one occasion when Deputy attacked other inmates and lost control of his gun, danger to himself defendant pushed other inmates a wall against prevent their obtaining the gun.
Sergeant Riley, Gerald formerly a correctional officer on “Death Row” at Prison, San Quentin testified readily adapted incarceration and *15 gets had “never been he problem”; and outstanding prisoner” was “an rules; he to have the well; he follows seems everybody along and eagerly he is a hard worker does fifth-grader; a fourth- intelligence inmates; he arrived on Death although when for the staff other favors Row, in he has since started had an interest pornography, obsessive result, Christian; as he has born-again the Bible and become studying an even than he had become better put away prisoner pornography no Riley danger believed defendant would Sergeant pose been. previously Row, Greene, on Death gave Norvell a correctional officer others prison. testimony. similar defendant, Payton, death inmates with
Mariney William row Joseph marked study change their Bible with defendant and the it had testified to in him. produced the court announced its decision.
Following closing argument, penalty Thereafter, automatic the court denied defendant’s motion modification 190.4, (e)) judgment death. (former imposed subd. penalty §
II. Contentions makes of death. As will attacking judgment Defendant several claims requires none reversal. appear, Penalty.
A. The Court’s Jurisdiction to Decide Defendant that under the 1977 law the court contends death penalty when, here, a jurisdiction penalty jury was without to decide the issue of as had decided the issue guilt. statute, have by original otherwise courts
Except provided “Superior causes,” jurisdiction in all criminal as civil. [subject (Cal. as well matter] Const., VI, 10.) subject power art. “Inherent in is the jurisdiction matter § facts, into the the law and to declare the inquire apply punishment.” (Burris v. Cal.App.3d Court Superior Cal.Rptr. accord, 898]; (1970) 10 Brown Cal.App.3d law authorities.) find in the 801], citing nothing penalty We 1977 death the court decide the issue of in a case which a power denies decided the jury guilt. has issue of 190.4, to the section arguing contrary relies on former as follows.
which relevant provided part jury, If defendant without a “(b) sitting was convicted court a jury jury trier fact at the shall be is waived penalty hearing unless *16 in the trier shall be the and the which case of fact the defendant people, of trier of fact by guilty, If a the plea court. the defendant was convicted defendant and the jury by people. a unless a is waived the jury shall be a crime If of defendant of for “(c) the trier fact which convicted the same subjected jury, jury which he be the death was a the may penalty to any by insanity shall consider of not reason of plea guilty pursuant [Penal 1026, may Section the truth of circumstances which be special Code] for shown the alleged, penalty applied, good and the to be unless cause jury court in which case a new shall drawn. The discharges jury be court shall facts in of the of the finding good state cause support upon 1977, record and cause them entered (Stats. to be into the minutes.” ch. 316, 1261.) p. §
We do the deny not read the foregoing provisions jurisdiction court decide the issue of a decided penalty jury when has the issue of guilt. (b) evidently Subdivision was intended to grant defendants who had waived jury trial on issue of the to a guilt right by jury. determination penalty turn, Subdivision (c), evidently was intended that when provide guilt had been by determined the same jury, jury should decide remaining cause, i.e., issues discharged unless for good to declare that defendants who had been jury convicted were not entitled to have a jury different circumstance, determine the issues of sanity, special Whether penalty. read separately or together, these affect provisions patently do not subject matter jurisdiction of the court. Consequently, the had juris- court diction to determine the issue penalty defendant’s case.
B. Waiver Trial by Jury.
Defendant contends his waiver jury of trial on the issue of penalty invalid. He maintains court’s failure to inform him of the effect jury deadlock under the 1977 death law its penalty asserted advice misleading the need concerning jury unanimity him precluded from an making intelligent and understanding waiver. Carnley (E.g., Cochran (1961) 369 U.S. 516 L.Ed.2d 82 S.Ct. In re 884]; Tahl 122, 131, (1969) 1 Cal.3d 449].) P.2d deadlock, 190.4, Concerning jury former (b) section provid- subdivision ed: “If the trier fact is a jury has been unable to reach a unanimous be, verdict as to what jury shall court shall dismiss impose punishment confinement state for life without prison possibil- ity of parole.” In advising defendant of his to a right penalty jury *17 waiver, jury to effect of a made reference the a the court no
implications
understand, also,
deadlock,
you
jury
if
and
that
do waive
“You
but stated:
trial,
Court,
you
a
solely.
jury
the
will act
have
it to
Court
submit
the
If
way,
agreement
unanimous
requires
a
returned either
it
verdict can be
before
con-
added.)
that?”
Defendant
you
(Italics
all 12
do
understand
jurors-,
correct,
that in omit-
technically
argues
but
cedes the court’s statement was
misleading.
it
the
of a deadlock was
ting
consequences
prejudicially
jury
not have a
to
right
It is
a defendant does
constitutional
settled
447,
U.S.
458-459
v. Florida
468
(1984)
trial on penalty. (Spaziano
[82
340,
Constitution];
Hough
People
(1945)
L.Ed.2d
the there was such record opinion deprivation. by a and of his knowing, intelligent voluntary reveals waiver by statutory jury to trial on the issue of Defendant was right penalty. counsel who over the course of apparently competent two represented days “at and nature of length” consequences several discussed him the contrary, his waiver. Absent an assertion or evidence the we proposed would have informed defendant of the competent that counsel presume 43 Cal.3d jury (Cf. effect of deadlock. Hendricks pres 592-593 737 P.2d Counsel defendant’s 1350].) reasons advising ence on the record their sound tactical de expressed court, jury consenting fendant to waive a to the waiver.4 The before explained: part upon 4Counsel “Number one. It is a tactical on our based conver decision counsel, friends, community, people in sations that Mr. Wolfe and I have had with the other attorneys, attorneys in review of competent complete trial criminal law After the area. case, and, Mesa, lastly, upon with a Linda an facts of individual based conversations Dr. reasons, cases, jury penalty upon expert psychologist in death based on selection those he, Robertson, [s;c] talking advantage to Mr. we feel the best it is to his advise fact, issue, give up right jury to have a trial on this and instead consent to have matter his heard as court trial. Robertson, have Mr. and he real- explained “I would also indicate to Court that we jury, gain advantage waiving izes that this not mean that he would favorable be- does making imposing cause as well knows the Court is limited to a decision of either death waiver, an thorough him in extensive and engaged defendant’s accepting intelli determining knowing, voir dire directed waiver expressly voluntary.5 explain the court would have done better to gent Although possibility By waiving imposing punishment parole. of life without him this, not, jury gain advantage punishments and he an to one of those as does realizes against punishment.” the other Robertson, you colloquy The Mr. under the law relevant was as follows: “The Court: course, *18 your right right jury. Attorney right do a have to waive to Of the District has a to a trial, it, jury accept require Before it a too. the Court can will waiver from the District Attor office, Court, ney’s that, you right although Under also. the law the have the to do the Court you required inquiry knowing intelligent is to of to is a make be sure that it waiver before So, going go through can it. am questions Court consent to I to some have been which by provided Attorney jury, to me a consenting District as condition of their to waive the also, you very I briefly. to and want discuss this with your position rehearing your “You understand that of jeopardy dire or severe in the tri- penalty phase by you al’s will be choosing not reduced the fact are a court trial rather than a trial; jury you do understand that? Yes, “The Defendant: sir. you you exactly Court: You also that “The understand should be aware that are in jeopardy regardless you same of the trial personally posi- method of which will choose? Your any tion degree. will not be legally altered in Neither the nor appropriate evidence out- altered, by come only your dictated the evidence be sentencing will the avenue of alternate changed any way; will you be do understand that? Yes, sir. “The Defendant: understand, also, you Court, jury that if “The Court: You do waive it submit to the trial, solely. you jury Court will act way, If have a before verdict can be returned either requires it agreement jurors; you unanimous all do understand that? Yes, “The Defendant: Your Honor. understanding you your And “The Court: give up right that still wish waive to jury? have a Yes, “The Defendant: sir. my “The Court: You personal any, understand that philosophy, concerning if death [the] penalty will my not affect or interfere with application evaluation of the evidence or of the law; you do understand that? Yes, sir. “The Defendant: my required way Under “The Court: apply constitutional oath I’m the law the it is personally My I agree whether personal philosophy nothing with it or not. has to do it. you Do understand that? Yes, sir. “The Defendant: words, trial, you, by your “The Court: waiving right jury other doing to a are so with jury, jury awareness that the will Court behave as a that has sworn it will that sentence you appropriate to death if evidence; you under the law and the do understand that? Yes, sir. “The Defendant: that, course, “The Court: And the other you side of is that the will Court sentence finds, prison possibility life in parole without the reviewing if the Court after all evi- dence, that, appropriate evidence; you that is under the law and the understand also? Yes, “The Defendant: sir. your “The Court: waiving You understand that right jury to a trial on the issue of your penalty you requesting lessening, a court trial not reducing eliminating are your possibility penalty being supports you set death if the penalty; evidence such a do understand that? Yes, sir. “The Defendant: deadlock, invalidate does not its omission a jury the effect of are too an effective waiver for Defendant’s requirements waiver.
defendant’s every to explain the court situation; no waiver requires any stringent made.6 being the choice and burden of benefit conceivable single it him that failure to inform Nor, does the court’s argues, as defendant by jury, require returned of death automatically review verdict would a failure to so advise held that We have previously conclusion. a different waiver. jury not vitiate a law does the 1978 death defendant under 710 P.2d 41 Cal.3d v. Deere (People under the 1977 statute. is true The same 925].) the hear- to conduct claim the court failed defendant’s Finally, reject we that he asserts and care” attention “special waiver with the jury on his ing record is otherwise. merited. The intelligence” “borderline allegedly *19 Waiver. Boykin-Tahl C. trial, the court counsel jury stipulated waiver of defendant’s
Following witnesses, with testimony 21 specified the former read and consider could any of the witnesses for if it wished call either side could understanding the jury you receiv- by waiving your right trial are not “The You understand that Court: consideration; leniency special anyone, implied, or any express either or ing promises from you that? do understand Yes, sir. “The Defendant: obligations the Court’s legal and Having made aware of the Court’s “The Court: been law, jury your give your right up required the is it desire to planned course of conduct your request penalty and a court trial? the issue of trial on Yes, Defendant: sir. “The trial, anyone your rights jury has your to a making decision to waive “The Court: In you? any implied threats to made direct or No, “The Defendant: sir. you? any anybody implied promises to made direct or “The Court: Or has No, sir. “The Defendant: trial, you your right jury do believe making your to a In decision to waive “The Court: anyone? any pressure you kind of from have received No, “The Defendant: sir. voluntarily jury freely your your right trial and waive “The Court: Is decision to made? Yes, “The Defendant: sir. concerning your you questions waiver? And do have “The Court: No, Defendant: sir. “The waiver? again join the defendant the I take it counsel “The Court: joins, yes, Your Honor. “Mr. Welch: Counsel 979, 984-985], supports (1983) A.2d recognize v. Md. 329 that Harris State 295 [455 6 We However, reasoning unper find its was ineffective. we argument that his waiver defendant’s (conc. (See opn. of Mur pp. at & dis. it here. 455 A.2d 985-986 suasive and decline to follow J.).) phy, C.
39
The
testi-
testimony.
stipulation.
prior
Defendant assented to the
additional
background
of the crimes and the
mony dealt with the circumstances
the
at defendant’s prelimi-
statements to
was
police
given
defendant’s
confession, and
admissibility
of his
nary
hearing
on
hearing,
special
testimony
3
21
prior
first trial. The
called of the witnesses whose
parties
submitted, as
20
witnesses.
well as
additional
274,
Boykin v. Alabama
We have previously not had occasion to determine whether the Boykin-Tahl case, rule the applies at penalty phase of the capital nor has United Supreme States Court addressed the Boykin application to penal ty trials. Assuming, without deciding, that the of Boykin-Tahl requirements would some circumstances apply to submission of the issue of penalty on the transcript prior proceedings, this is not such a case. Tahl,
A “submission”
the
within
1
meaning of
Cal. 3d 122
supra,
Bunnell,
right decide the court can his agrees defense additional evidence his own v. (Bunnell Superior the prior proceedings. the basis of transcript case on Hendricks, Court, 43 v. Cal.3d 604; People supra, 13 Cal.3d see p. at supra, the additional may the reserve to 593.) Although right present at p. parties evidence, jury of a trial of a submission are waiver the essential components and, who in the prior proceedings, to the witnesses testified respect (SeePeople in the v. present the to confrontation right proceeding. waiver of Hendricks, v. 43 at 496; 43 Cal.3d Wright, People supra, Cal.3d at supra, p. 670 cited; v. 172 Phillips (1985) Cal.App.3d and cases cf. People p. When is a “slow or “tantamount to a 524].) the submission plea” self-incrimi gives up privilege against the defendant also plea guilty,” Thus, v. at a “submission” is Levey, p. 652.) nation. Cal.3d (People supra, rights a defendant surrenders. defined
Here, indicated, at right defendant had no constitutional moreover, jury statutory right, to a trial. His waiver of phase penalty not a of his admission of witnesses’ consequence stipulation testimony, (Cf. but it. Phillips, supra, former preceded Further, 673.) at to the defendant did p. agreeing stipulation Cal.App.3d “involuntary (Wright, himself by guilt” not incriminate an confession of or, at p. phase, Cal.3d terms to the an supra, 495) applicable was the to the involuntary concession that death con appropriate penalty; trary, he offered a and skillful defense. Nor did defendant surren complete him; right against der the confront and cross-examine the witnesses rather, expressly right defendant reserved to call the witnesses whose Hendricks, testimony recognized was admitted. As we in People former 592-593, in a pages involving jury Cal.3d counsel’s failure trial defense, there is no surrender of one or more of three present constitutional “when the rights undergoes—and thereby specified to—-a has right exercises his trial and to cross-examine jury opportunity (Italics him and refuse to himself.” against the witnesses incriminate no added.) We reason for a different conclusion when defend perceive *21 a court undergoes ant trial. defendant had in the prior
Here confront opportunity proceedings testimony and cross-examine witnesses whose former was admitted and right. reserving he exercised that He preserved opportunity—by circumstances, call the In witnesses—in the trial. these right choice confrontation in ultimately right counsel’s to exercise defendant’s “submission,” rather, manner no only a limited was not a but was more (See than a tactical decision counsel’s make. v. People within discretion to Hendricks, 592-594; (1986) 43 v. 41 Cal.3d at supra, pp. People Ratliff 675, 705, 715 v. Williams 665]; People Cal.3d 697 P.2d Cal.Rptr. [224
41 208, 894, v. 471 P.2d Hall 1008];People 2 Cal.Rptr. Cal.3d 905 (1970) [88 299, v. 107]; 314-316 see also Cal.Rptr. People (1979) Cal.App.3d 95 [157 271, (opn. 276 274-276 (1969) Cal.App.2d Cal.Rptr. Chasco 667] [80 Kaus, a P. “Once defendant has elected to contested J.).) proceed a trial, a guilty sentencing upon preliminary rather than based plead accept . . . examination the manner of evidence becomes transcript, presenting counsel, one of trial tactics vested at least the absence of properly 697, Ratliff, and his client.” v. (People supra, p. conflict between counsel 306, 813]; v. Hill citing (1971) 19 315-316 People Cal.App.3d Cal.Rptr. [96 803, 818, v. fn. (1985) see also Frierson 39 Cal.3d 8 Cal.Rptr. [218 73, contrary 705 would 396].) Although P.2d have us reach on the sheer number testimony conclusion based of witnesses whose admitted, we no perceive meaningful basis the distinction.
We recognize that trial counsel in the of a guise tactical choice cannot a defendant of his v. deprive basic constitutional rights (People Frierson, 812-817; 39 Cal.3d at v. supra, Townsend Court pp. Superior 774, 251, 15 (1975) Cal.3d 781 543 P.2d Cal.Rptr. 619]) that the Boykin-Tahl rule to tactical applies decisions that those implicate rights 143, 157, 844, Hall 28 (e.g., People (1980) Cal.3d fn. 9 616 Cal.Rptr. Rather, P.2d 826]). In the instant case there was no deprivation. counsel witnesses, reserved the call right to and cross-examine all the but as tactical matter determined it was to defendant’s advantage not have the testify witnesses in person.
Even assuming, arguendo, that the case stipulation this consti Tahl, tuted “submission” within the meaning of Cal.3d 122 and supra, Bunnell, 13 Cal.3d supra, clearly the submission was not tantamount ato concession that death was the appropriate these circum penalty. stances the trial court was not constitutionally to adhere to the compelled Boykin-Tahl requirements (Wright, 497); Cal.3d at pp. hence, the reasonable possibility standard of review applies. (People Brown Cal.3d 758 P.2d 1135].) Unless we indulge in mere speculation and conjecture, on this record we can come to no conclusion other than the Had following: defendant been advised right of his of confrontation and privilege against self-incrimination validly and then waived his rights, the submission would procedure have been the same with the same result. Had he instead chosen not make the waivers, the result likewise would have been the same. The witnesses whose testimony former was admitted had been cross-examined at one of the prior *22 and in proceedings some cases at more than one. Consequently, if defendant waiver, had chosen not to make a all or at least substantially all of the 18 witnesses whose prior testimony was admitted by stipulation and who did substantially to the same or testimony live have testify given
not would error, give if in any, failing that the court’s We thus conclude same effect. nonprejudicial. waivers was and take defendant’s advisements the required Activity. Criminal D. Use Unadjudicated 1. Due Process. evi- phase the presentation penalty 190.3 permitted
Former section involved the use or activity by the defendant which “other criminal dence of violence,” activity that “criminal and provided use of force or attempted trial Ernest F. and At defendant’s penalty a conviction.” does not require them. In neither instance upon A. to defendant’s attacks Catherine testified defendant. been filed charges against had incidents unadjudicated of prior contends that admission
Defendant rejected due We considered activity process. criminal violates 144, 41 Cal.3d 204-205 (1985) in v. Balderas People similar claim [222 184, law. penalty under the 1978 death 480], 711 P.2d decided Cal.Rptr. 666, 1168, 1202 Cal.Rptr. 43 Cal.3d (Accord, (1987) Gates People identical in the 1977 law is 301].) acknowledges, 743 P.2d As defendant 29, 41 Cal.3d 69-72 (1985) (See generally People Phillips relevant part. defendant advances no 423].) persua 711 P.2d Because Cal.Rptr. Balderas, adhere to that decision. reconsider we sive reason to 2. Limitations. Statute of defining 41 Cal.3d and section on
Relying Phillips, conviction,7 defendant as after punishments imposed crime part Ernest F. attack and the 1977 that because prosecution serts limitations, not be the statute of he could Catherine A. attack was barred incident; hence neither constituted “crime” within convicted of either failed to advance Although statute. of the death meaning below, objec nevertheless consider the objection a statute of limitations we 739, 756-757 (Cf. v. Chadd 28 Cal.3d tion here. 837].) 621 P.2d activity” “criminal in former section 190.3 we held the term Phillips convictions, but excludes offenses for which felony includes than prior more public act or provides part: “A crime or offense is an committed Section 15 relevant annexed, it, upon forbidding commanding a law and to which is omitted violation of conviction, Death; [1|] following Imprisonment; 1. 2. 3. punishments: either of the [[]] [H] or, Fine; office; enjoy [j[] [j]] Disqualification office of 4. from 5. to hold Removal honor, profit trust or in this State.”
43 for which the defendant the defendant has been “nonoffenses acquitted 71-72.) language be Cal.3d at As (41 subsequent could not even tried.” pp. clear, the of behavior in makes our was to define kinds Phillips purpose the the statute makes relevant to choice of sentence—to wit— of violence that demonstrates “actual conduct” violence or threat involving Gates, (Id. 24; fn. v. People the of a 72 & cf. penal p. violation statute. conviction, 1168, conduct, 43 3d 1203 not in supra, [probative Cal. value To violent behavior because its exclude criminal phase].) simply of former prosecution is time-barred would be to terms ignore plain fact, as well underlying section 190.3 as its that the trier purpose—i.e., determining make an individualized determination on basis of penalty, the character of the as well offense. (See offender as circumstances of the 862, 235, Zant v. 462 (1983) 2733]; U.S. 879 L.Ed.2d 103 S.Ct. Stephens [77 963, 278, v. Jennings 46 Cal.3d People (1988) Cal.Rptr. 981-982 760 P.2d law]; see v. 41 generally Cal.3d at People Phillips, supra, 475] [1978 pp. 69-72.)
The conduct the Ernest F. underlying and Catherine A. attacks clearly falls within one more penal statutes 261 207 (e.g., [rape], [kidnap- §§ 288a, 286, ping], subd. (c) oral (c) subd. copulation], [forcible [forcible sodomy]); hence it was as other properly activity.” considered “criminal (See generally People Jennings, 46 981-982.) Cal.3d at pp. argues additionally
Defendant because statute of limitations had incidents, run on the of the evidence alleged offenses was inadmissible under the due clauses of federal process and state Constitutions. In support, argues the evidence related to attacks remote time and thus difficult to defend We against. doubt whether either attack—that on Ernest F. in 1973 or on Catherine A. in 1977—can properly be characterized as “remote.” Nor does the statute of limitations of embody itself a due limit on process the time within which a defendant can be to defend required against a Rather, particular charge. United States Supreme recognized Court 307, United States 468, Marion 322 (1971) U.S. L.Ed.2d S.Ct. 455], statutes of limitation “represent legislative assessments of rela tive interests of the State and defendant in administering receiving justice; . . .” That these assessments are flexible and not immutable is demonstrated, alia, inter by the Legislature’s frequent amendment of sec felonies, tion proscribing limitations for period serious including (See Note, defendant’s criminal activity. Historical Pen. West’s Ann. Code (1985 ed.) 194.) foll. p. § v. Morris Cal.3d 14-15
P.2d rejected we the claim that a felony time-barred not may form the 843] fortiori, predicate felony-murder special “A circumstance. there is no *24 44 force or involving felonious conduct
bar to consideration of [time-barred] 46 Cal.3d at (Jennings, factor.” aggravating supra, the threat of force as an 982.) p.
3. Code Section 352. Evidence of the Ernest F. and Catherine A.
Defendant to admission objected The court overruled the grounds. on Evidence Code section 352 evidence the evidence at a defendant leave to move to strike objection, granted but failed make a motion to strike and subsequent later time. Defendant argues to the evidence. He now the court objection withdrew his expressly that the finding probative erred in to make an on-the-record failing explicit effect. Green outweighed prejudicial (People value of evidence its 1, 1, 468].) 27 Cal.3d 25 609 P.2d (1980) Cal.Rptr. [164 Defendant, evidence, to the cannot now having objection withdrawn his Further, we that at reject proposition its admission. complain trial the court has discretion under Evidence of a penalty phase capital activity 352 evidence of criminal unadjudicated Code section to exclude contrary, violence. To the the evidence is made admissi involving expressly 612, (See ble former section v. Karis 46 641 (1988) 190.3. Cal.3d People 659, 758 Cal.Rptr. law].) P.2d [250 1189] [1978 Reliability Sufficiency 4. the Evidence.
Defendant evidence of the Ernest F. and Catherine A. complains unreliable, by only offenses was as each was established witness. single law, however, testimony Our that the of a witness expressly provides single Code, contradictions, (Evid. 411.) Any is sufficient to establish a fact. § asserts, testimony or other weakness in the witness’s are matters to be on cross-examination and to the trier of fact. The explored argued reliability of the evidence is that the trier of safeguarded requirement only fact if may consider the evidence it determines the other crimes have I, proved beyond (Robertson been a reasonable doubt. 33 Cal. 3d at pp. 53-55.)
Defendant maintains that neither instance did the evidence establish activity” beyond “criminal a reasonable doubt. reviewing “ evidence, ‘whether, sufficiency of the our task is to determine viewing after the evidence in the most rational trier light prosecution, any favorable to beyond of fact could have found the essential elements of the crime 557, reasonable doubt.’” v. Johnson 26 Cal.3d 576 (People (1980) 431, 738, 606 P.2d 16 A.L.R.4th v. Vir 1255], Jackson quoting 443 ginia (1979) 2781], U.S. L.Ed.2d S.Ct. italics in accord, v. Guerra 40 Cal.3d Cal. original; Rptr test, 1252].) 708 P.2d we conclude that a ratio Applying this nal beyond trier of fact could have found a reasonable doubt that defendant had used force or the threat of F. and A. to commit oral compel force 288a, (§ (c)). subd. copulation
5. Lack Notice.
Before defendant’s first trial the notice that it prosecution gave would introduce evidence of the Kim P. in attack at the aggravation penalty which it did. The phase, did not notice that it would prosecution give attacks, introduce evidence of the Ernest F. A. and Catherine nor did it to introduce attempt such evidence. More than three months before com retrial, however, mencement of the penalty the phase prosecution gave notice that it would introduce in aggravation evidence the Er concerning attacks, nest F. and Catherine A. as well as the Kim P. attack. Defendant claims the Ernest F. and Catherine A. evidence was inadmissible under the notice requirement former section 190.3.8
The record is unclear that defendant raised the notice objection below.
so,
Assuming arguendo
reasons,
that he did
he subsequently, for tactical
expressly withdrew
objections
to the
F.
Ernest
and Catherine A. evi-
dence; hence he may not raise the claim on
Rogers
v.
appeal. (People
(1978)
542,
21
732,
Cal.3d
547-548
Cal.Rptr.
Where the question of notice arises in the context of the initial trial in which the guilt and penalty phases occur in immediate sequence thus are unitary of a part proceeding, we have construed “trial” as the whole proceeding; hence notice must be given in advance of the guilt phase. (People Miranda (1987) 44 Cal.3d 96-97 744 P.2d Where, however, here, 1127].) as the notice issue arises the context of a trial—i.e., second “retrial”—following successful “trial” appeal, must 8Former provided section 190.3 part may in relevant presented by that “no evidence be the prosecution aggravation unless notice of the given evidence to be introduced has been time, court, the defendant within a period reasonable as prior determined trial.” (Stats. 1977, 11, p. 1259.) ch. § in which the mat
reasonably judicial proceeding to mean the be construed Only this construction serves examined and resolved. again ter issue is ac “to an notice advise provision—viz., purpose both evident may oppor that he have reasonable against of the him so cused evidence (Miranda, p. trial” tunity penalty a defense at the prepare “be jury that the of section 190.3 law])—and overriding purpose decision” bearing (People on the penalty made aware of all of factors therefore, conclude, We law]). 46 Cal.3d at Jennings, supra, p. 987 [1978 original embraces the the “trial” to which former section 190.3 refers retrial, trial, above, it of proceeding or the be the entire defined only. phase required Pursuant section 190.3 foregoing, prosecution former *26 or at a time to trial prior to notice evidence reasonable give aggravating of the By notice than three months retrial prior retrial. its more filing of the requirement satisfied notice phase, prosecution penalty statute.
6. Double Jeopardy. after
By
against
to the
retrial
analogy
prohibition
constitutional
or
acquittal
charges
following
appeal
increased
successful
punishment
628,
Perry
v.
Defendant’s is meritless. double argument prohibition dy from twice in for the same protects being placed jeopardy defendant I, Const., 15; (U.S. V; offense. Const. Cal. art. see generally Amend. § 713, 756, 867, v. 44 fn. 17 750 Melton Cal.3d People Cal.Rptr. kind or 741].) bearing P.2d The has no on the prohibition quantity may evidence be in successive trials of an issue. Defendant introduced against was never once in offense out of the attacks jeopardy arising F. A. intro Ernest Catherine The entitled to prosecution plainly at the time. duce evidence of these incidents second E. Circumstances the Kim P. Attack. P., Kim
As a of the attack on defendant was charged consequence felony 209); deadly four with a kidnapping (§ weapon counts: assault 245, bodily likely great (§ (a)); produce subd. assault means of force to a dis (ibid.); (§ 288a). negotiated Pursuant injury perversion” “sex 288a— violation of section guilty position, subsequently pled for dismissal of the exchange oral use of force or violence—in copulation trial, prosecu and assault At defendant’s kidnapping charges. Kim P. circumstances testify regarding underlying tion called section 288a conviction as well the other that were charges defendant’s below, dismissed. he made defendant now Although objection no testimony contends Kim P.’s amounted to an relitigation impermissible both the 288a charges. section conviction the collateral dismissed Gates, v. 43 Cal.3d at we a claim People rejected supra, page under the 1978 that the law should not be allowed to prosecution present testimony concerning involving conviction violence to which the prior defendant offered to We stated: “When stipulate. dealing with violent con- duct it is not the of conviction which is in the probative penalty phase, fact but rather the conduct of the gave defendant which rise to the offense.” Hence, (Italics in original.) the statute all permits introduction of evi- conviction, dence of violent crimes they whether or not resulted in a except accord, those of which the defendant has been acquitted. (Ibid.; People Karis, Melton, 612, 640; supra, Cal.3d 44 Cal.3d People 754; see also v. Ghent (1987) Cal.3d
739 P.2d of dismissed This charges].) is principle equally 1250] [evidence statute, applicable to the 1977 which is identical in relevant (Stats. part. 1977, 316, 11, ch. p. 1259.) § 754, Relying on v. People Harvey (1979) 25 Cal.3d 758 Cal.Rptr.
696,
Although he failed object to at defendant asserts error in the admission in the prosecution’s case-in-chief of expert testimony relating several statements he made in the course of and psychiatric psychological interviews.9He complains evidence was irrelevant to determination 9 alia, complains, Defendant following (1) inter of he statements: once contracted vene Vietnam; (2) real disease while in (3) he had a prison; consensual homosexual encounter during eight years Army, AWOL; (4) in the he once was therapy he missed some sessions during probation period homicides; (5) ticket; (6) before the he once received traffic
48 762, 775-776 (1985) 38 Cal.3d Boyd v. (e.g., People penalty
of reliability 1, 782]) principles P.2d violative 700 Cal.Rptr. 738, 733, 771 631 Cal.Rptr. (1981) v. 29 Cal.3d Murtishaw (People 428 v. (Woodson (1976) North Carolina 446]) discretion guided P.2d 944, 280, 2978]) capital S.Ct. applicable L.Ed.2d U.S. 302-303 [49 sentencing. Murtishaw, under the 1977 death court noted that supra, this may be ad- and mental condition”
law “evidence of defendant’s character statutory if linked phase specifically mitted at even not the penalty 38 Cal.3d 773; Boyd, supra, at sentencing (29 p. People factor. Cal.3d see statute, consider, moreover, the 1977 like the 772.) at factors to p. As law, influence or not the defendant was under the listed whether specifically or at the disturbance” and whether not of “extreme mental emotional a result suffering time of the he was from diminished “as capacity offense Murtishaw, 35.) fn. (See p. mental disease.” supra, prosecution psychiatrists psycholo- Defendant’s statements to offenses, those to his given relating the nature of the gists—in particular, state, of his mental sexual behavior—were relevant their evaluation relevant directly which in turn was ultimate issue appropriate law, of the evidence under the 1977 introduction Consequently, penalty. (Cf. case-in-chief was not error. Mosher the prosecution’s P.2d 659].) Cal.3d 399 [82 Murtishaw, 29 Cal.3d at Citing page argues because himself other wit- statements were unreliable contradicted Murtishaw, general unreliability predic- nesses. to the relating psychiatric is Defendant’s statements were dangerousness, tions of future inapposite. truth, sum factors part offered not for their but as of the total of considered *28 in by Any the in defendant. contradiction prosecution experts evaluating admissibility, of the weight the statements not to their but to goes they opinions insofar as relied on statements. experts’ Identify Law. G. Failure to Applicable ambiguous princi contends the record is as to legal
Defendant rendering its applied penalty, trial court to determination thus ples meaningful (See, e.g., Gregg Georgia (1976) review appellate impossible. 859, 188-189, 153, 204-207 L.Ed.2d S.Ct. 2909]; People 428 U.S. 96 730, 667, 113]; 42 778 cf. Rodriguez Cal.Rptr. Cal.3d 726 P.2d (1986) mescaline; (7) occasionally marijuana began masturbating age he at smoked and once tried 13; (8) kept undergarments he under his mattress. female
49 P.2d 680 36 Cal.3d v. Lanphear People the instruc designate be to required He trial should 1081].) urges judges their decisions. they reaching intend to use in tions it stated the law Contrary defendant’s the court premise, expressly 190.3, i.e., to the on which points would former section apply, except to defendant.10 The applicable current section 190.3 was more favorable followed, to be the factors sufficiently procedures statutes set forth to be made. sentencing consider and the manner in which the decision is necessary correlative thus is not Designation permit instructions review. meaningful appellate
In a the court erred at the time it argument, related asserts which, any, if the more finding failing rendered its sentence specify may favorable of the statute it had He provisions applied. argues thus have been denied the benefit of the law’s mandate of a apparent court, however, life sentence when The mitigation outweighs aggravation. stated it if expressly would be bound the 1978 law it found that mitigat ing outweighed (See ante.) circumstances circumstances. fn. aggravating The record is clear the court determined be (Cf. such not to the case. v. Rodriguez, 783-784.) Cal.3d at pp. 10 The colloquy thing. relevant is as follows: I did want to comment on one “[the Court:] And, course, aware, Both have counsel referred to Section 190.3. as we are all that has
been amended the initiative that went into effect. The initiative went into effectin Novem any ber of opinion event. The Court is of the that the Court should consider the act alleged as it existed at the points time of the offenses unless there’s some more favorable initiative, in which event then Mr. Robertson’s entitled to have whichever is the most fa you agree vorable to his side. Do with that? statement, yes, People agree “Mr. with that Your Honor. McDowell [Prosecutor]: any changes There aren’t substantial “The Court: other than the fact that in the initiative they convictions, any felony allowed the Court to permitted consider which was not under not, point, any the 1977 act. Pm proven at this conscious of other felonies that were in this event, any probably case in apply. so it doesn’t “Also, fact, jury there instructing the circumstances about about the effect of the course, right governor lawyer, why, of the being judge to commute the sentence. Of way ignore I knowledge. there’s no can the fact that I have that But I won’t consider it in ar- riving my my way decision. It won’t affect decision one other. in, only is, “The change other matter I see that there’s been substantial that under initiative, guidelines K making subsection of the the determination are more soli- *29 says aggravating outweigh dified. It that ‘If the mitigating, Court finds circumstances the it give penalty. mitigating outweigh aggra- shall the death If the Court finds that the factors the vation, give imprisonment it possibility parole.’ shall life without perhaps of I think to the Robertson, point that by it is favorable to Mr. I would be bound those standards. If the Court bound, contrary, finds facts that indicate the then though the court would not be even the aggravating Court outweighed mitigating found that the circumstances the it would not be impose penalty.” bound then to the death Law. the Misapplication H. Misinterpretation of 1. Error. Davenport sentence, the discussing of began by trial court each
In the determining or (c), 190.3. to factor whether statutory in former section As factors listed under influence the defendant was the the was committed while not offense disturbance, found defendant was the court of extreme mental or emotional influence, in the Court acting stating part: “Specifically, not under such under a stress disor acting finds that was not post-traumatic the defendant as brief reactive As to psychosis.” der or state defined psychotic under the at the the defendant’s capacity factor or not the time of offense (g), whether his conduct to the criminality his conduct to conform appreciate the of a result of mental disease or the effects impaired law was requirements of Thereafter, intoxication,11 there was no impairment. of the court found such At the of its statement of the court summarized its conclusion findings. applicable mitigating and before the reciting factors applicable aggravating factors, its of no evidence of mental or emotional finding the repeated court capacity factor nor evidence of under (c) impaired disturbance to support v. factor on Cal.3d (g). Relying People Davenport court 861], argues 288-290 710 P.2d trial in aggra factors as factors improperly mitigating considered absence vation. in arguing jury
In this court erred to the prosecutor held Davenport factors, to the in that the of certain not relevant evidence mitigating absence case, Cal. 3d 289- aggravating (41 rendered each of them an factor. at pp. 789-790, Rodriguez, In 42 Cal. 3d at we distin 290.) People supra, pages in merely and held the did not err guished prosecutor pointing Davenport jury (Accord, out to the factor. inapplicability mitigating Ghent, at supra, 775.) 43 Cal.3d p. evidence;
In the were relevant to the present (c) (g) case factors indeed, they the crux defendant’s Viewed mitigation. were case context, the fac- supportive court’s reference to the absence of evidence more that defendant had failed (c) tors was no than a statement (g) (Cf. circumstances. attempt prove potentially significant mitigating 790.) 42 Cal.3d Rodriguez, supra, p.
2. Boyd Error. factors, its concluding summary applicable aggravating had that at the time of the court stated that it “also considered fact defect,” stating impairment The court of “mental it did so direction of added result I, (See pp. 59-60.) this court. 33 Cal.3d at Robertson
51 against crimes committed from the probation murders defendant was on Rely time.” at that actually undergoing therapy Kim and was [P.] 762, the court 38 Cal.3d defendant asserts Boyd, v. ing People supra, on defendant’s nonstatutory factors of erred in considering aggravation status and therapy participation. probation statute the prosecu- held that under the 1978 death Boyd penalty we evidence relevant to listed case for is limited to aggravation
tion’s only extenu- that factor (k)—“since encompasses factors exclusive of factor offered as a basis for sentence less circumstances circumstances ating . . We 775-776.) distinguished than death . .” Cal.3d at thus (38 pp. under which evidence of defendant’s 1978 statute from its 1977 predecessor, mental admissible if “relevant to aggravation, character and condition was 190.3, if it did not relate (former and sentence” 1st even mitigation, par.), § Cal.3d De- (38 772.) factor. at specific aggravating mitigating p. fendant relevant argues his status and are probation therapy participation under neither the death law—which he concedes is penalty generally 1977 case, to this nor under the 1978 law—which he maintains is applicable on this applicable point.
Because defendant committed the offenses
the 1977 law was in
when
effect, that statute’s
provisions governed
retrial.
penalty
Although
court,
indicated,
trial
its intent
expressed
apply any
provisions
effect,
1978 law it deemed more favorable than the 1977 law—in
to give
defendant the “best of both worlds”—in
it
doing,
gave
so
defendant more
than he was entitled to. A
trial
be held under the
capital
must
death penalty
committed;
law in effect at the time the
offenses were
capital
application
any other
v. Easley
law is error.
34 Cal.3d
883
(People
(1983)
[196
813].)
671 P.2d
v. Collins
208
Cal.Rptr.
People
(1978)
Cal.3d
686, 577 P.2d
Cal.Rptr.
Rossi
Cal.3d 295
1026]
defendant,
P.2d
cited
Cal.Rptr.
1313],
are
Both cases
inapposite.
conduct,
deal with the legislative decriminalization of
the effect of which is
an end to all
put
prosecutions and
under the
statute
proceedings
repealed
not reduced
(Rossi,
302;
to final
re
judgment.
supra,
cf. In
Estrada
p.
(1965)
clearly were his inability to refusal or indicated defendant’s of the state’s trust and violation him. The from and to benefit offered help misdeeds prior learn from considering in these facts. thus did not err trial court Facts. Aggravating Use 3. Dual made an dual use maintains the court impermissible
Defendant
P.,
A.
Catherine
Kim Ernest F. and
against
violent criminal acts
his prior
(b),
or absence of
under both factor
the presence
it cited those offenses
when
whether
offenses were
activity,
(c),
factor
or not the
violent criminal
under the
extreme mental
while the defendant was
influence of
committed
or emotional disturbance.
Melton,
an
although
In we in same act twice for the aggravation individual criminal cannot be counted there is no obstacle consideration “separate constitutional purpose, determination, those even when aspects distinct of the properly Here, (Id. 764-765.) to coexist in a incident.” at happen single pp. aspects (b) activity, the court reciting after offenses as factor criminal prior under their determination length reaching discussed circumstances its the two surrounding Based on its evaluation of the circumstances (c). factor in the history,” crimes and the defendant’s “criminal as reflected charged acts, in the criminal concluded not prior violent the court defendant was influence of emotional acting instant case under the extreme mental or disturbance; rather his gratification. was sexual purpose was not prior foregoing
Use of the criminal acts for distinct purposes error.
4. Factor. Sympathy concerning
Defendant asserts that the record ambiguity acknowl court’s consideration reversal. Defendant sympathy requires the court it could for de edges sympathy understood “consider” properly fendant, it could but maintains failed to understand that alone sympathy for a life form the basis sentence. disagree. expressly
We
its sentence determination the court
making
noted that it could
consider
for the defendant
“properly
sympathy
pity
mercy
whether or
determining
not to show
spare
defendant from
“constitutionally enti
(italics added)
execution'''
and that defendant was
tled” to have it consider
factor raised
the evidence.”
“sympathy
to the court’s
ambiguity,
points
As the basis for his claim of
statement in
on his
subsequent
ruling
penalty-reduction application
*32
by
raised
the evi-
it
and considered
factors
although
recognized
sympathy
dence,
the evidence and
“the Court still feels that it is bound to review
mitigating
and take
account and be guided
aggravating
consider
into
context, however,
set
in the
Read in
circumstances”
forth
statute.
court’s earlier
that
could form the basis for
recognition
sympathy
express
decisions
mercy,
fully
this statement was
consistent with our subsequent
relied
v.
34
(E.g.,
Easley,
on
defendant.
Cal.3d at
875-
People
pp.
163,
879;
166-167;
36
v.
Cal.3d
Brown
People Lanphear, supra,
People
512,
637,
(1985) 40 Cal.3d
536-540
440],
709 P.2d
revd. on
Cal.Rptr.
[220
other
v. Brown
grounds
(1987)
I. Error. Skipper
1. Future Conduct. Defendant's
Defendant contends the court failed to consider evidence of his
lack of future
in
in
dangerousness
violation of
prison
South
Skipper
Carolina
(1986)
U.S.
L.Ed.2d
106 S.Ct.
and related cases.
1669]
In Skipper the trial court excluded evidence the defendant had conducted
himself
inwell
prison since arrest. On
the United
appeal
States Supreme
reversed,
Court
stating “evidence that the defendant would not
pose
if
danger
(but
spared
incarcerated) must be considered potentially mitigat
ing.
Under Eddings
(1982)
Oklahoma
As the United States
Court stated
Supreme
1,
455
the State
ma
U.S. 104
L.Ed.2d
102 S.Ct.
“Just as
(1982)
[71
869]:
may
by
considering any
sentencer from
mitigating
not
statute
preclude
law,
consider,
factor,
any
a matter
may
neither
the sentencer refuse to
.
. may
. . The sentencer . .
determine the
mitigating
relevant
evidence.
may
it
give
to be
relevant
evidence. But
not
no
weight
given
mitigating
[it]
(Id.
.
113-
such evidence
. .
consideration.”
at
weight by excluding
pp.
from
added.)
115
first
in
second italics
10-11],
original,
L.Ed.2d at
italics
pp.
[71
court in a footnote stated: “We note that the Oklaho
Continuing,
high
ma
evidence ‘as to
present
death
statute
permits
438
any
Lockett
Ohio
U.S.
mitigating circumstances.’
[v.
[Citation.]
115,
10
(Id.
to listen.”
at
fn.
L.Ed.2d at
requires
p.
p.
sentencer
[71
586]
11], italics added.)
108
Lynaugh (1988)
Franklin
2320], procedure is accord. statement, aggravating an that defendant 12 Thecourt’s that it did not consider as factor might response danger, prosecution evidence fu still be doubtless was in of defendant’s Murtishaw, any dangerousness ture error su possible and intended to avoid under penal pra, it death Cal.3d wherein this court held was reversible error under ty psychiatric prediction future law to admit evidence an unreliable of the defendant’s dan (Id. 774.) gerousness. at p. fn. & p. the jury was instructed defendant would receive a sentence of death if it “yes” answered to two whether defendant “Special being Issues”—one would be dangerous the future. Defendant asserted the pre- procedure jury vented the giving from to his independent mitigating weight good conduct in The prison. high court held otherwise. plurality opinion Because defendant’s good conduct was relevant to the issue of future dan- defendant, stated, gerousness, the lead a full opinion “was accorded oppor- tunity to have jury consider and sentencing give effect to mitigating that impulse (Id. record . . .” prison might suggested have . at pp. [his] O’Connor, 177-178 L.Ed.2d at p. 168].) Justice Concurring, joined Blackmun, Justice “a may stated that State not constitutionally prevent body sentencing from effect to evidence giving relevant to the defendant’s Indeed, background or character .... to have the right sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted give effect to its consideration.” (Id. at 184-185 pp. L.Ed.2d at The pp. 172-173].) dissent it agreed was not enough jury be allowed to hear evidence; defendant’s mitigating it must also be allowed give independent evi- mitigating weight to the dence. (Id. at p. Stevens, L.Ed.2d at p. (dis. opn. J.).) 177]
What
the
Court’s death
Supreme
con
jurisprudence
demns,
observed,
as the
dissent Franklin
is “the erection of barriers to the
jury’s full consideration of
. .
.”
mitigating evidence
.
(
Were
nevertheless to assume the court refused to consider
evidence,
this mitigating
the question would be whether the court’s refusal
was harmless under the Chapman
v.
(Chapman
386
(1967)
U.S.
California
705,
18
824,
L.Ed.2d
87 S.Ct.
Applying Chapman failure, we are of the view the any, court’s if to consider defendant’s evidence of his lack of future dangerousness is in aggravation As circumstances reasonable doubt. beyond
harmless first of two counts of separate had been convicted court found defendant him, nine findings of jury committed personally murder degree ante, of well as three acts 28), prior fn. as (see p. circumstances special and mutilation and extraordi- of murder involving criminal violence threats the kidnappings The nary planned abuse. court found physical cruising his and as shown gratification, of sexual assault purpose for victims, knife in violation boning carrying looking potential around for mur- the first and second knife between sharpening and probation, “was to accomplish motivation each of the murders ders. His primary and, the murders pain ultimately, part with infliction of sexual assault and, also, may “actually detection”; he have to avoid the infliction pain inflicting that then him an excuse gave to use force because preferred committed, including were the manner in which the murders From pain.” death,” as well as “the of the bodies before after extreme mutilation A.,13 F., Ernest Kim P. and Catherine of the assaults on circumstances inflicting pain from gratification court determined defendant obtained discomfort, “both mental and on his victims. physical” mitigation the court against aggravating weighed
As these factors retarded, immature, from emotionally suffers mildly mentally defendant is disorders, had a child- judgment, has troubled impaired personality Sheriff Deputy The court also considered defendant’s assistance hood. Coyle conduct in good prison. record hearing, sentence choice at the reviewing penalty-reduction its factor all in opinion court stated “the most the Court’s aggravating *35 breasts, being factor to remove the unsuccess- attempting the of [defendant] ful, I knife and it with him. sharpening taking and then out and the going the the finally weigh think this is the factor that caused Court principal did, out- clearly matter in which it that the circumstances aggravating the factors.” weighed mitigating not, view, assertion, close case.14
Contrary to this was in our defendant’s us, the court’s concern repeated express On record before particularly court, knife to circumstances include that defendant “held the As recounted these testicles,” groin jabbing “in neck later his and to his him throat and on to [Ernest F.’s] distress,” groin causing knifepoint, repeated at extreme mental and the area and the testicles ly desert”; “repeat he suggesting ought leave him out on the “he to mutilate and [him] edly P.], was physically kill abused her with the Coke bottle until she threatened to [Kim lighted cigarette vagina, bleeding vagina] inserting a into her and her [from [burned] breasts”; “he beating her and that with Catherine A. threatened as well as about head and her, also, actually bleeding physically by sodomizing kill her her until she abused bruising and his of her breasts.” judge’s pronouncing sentence that “this is Defendant cites the trial statement before becoming judge and that probably the most difficult decision I have had to make” since offenses, activ- including with the circumstances of the defendant’s planning conduct, ity, and with defendant’s of violent sexual his pattern including extreme and mutilation on his vic- purpose pleasure inflicting pain tims, failure, if any, weigh mitigation we find the court’s defendant’s lack of future have dangerousness could not affected its determina- beyond tion is harmless reasonable doubt.
2. and Vietnam Age Experience. Defendant’s claim,
In addition to the foregoing contends court refused, refused, or must be have presumed to to consider evidence he presented concerning two other issues: his mental and the age effects of his military service in Vietnam. concerned,
Insofar as age defendant’s is is untenable. In point rele- vant part the court’s statement of reasons was as follows.
“Factor H: ‘The age of the defendant at the time of the crimes.’ Under [^J] case, the facts of this the Court does not consider his as either a age mitigating factor. aggravating Although most witnesses intel- placed his level, lectual development 12-year about a fully he had matured physical- ly, had served in the Job Corps substantial time in the Army, including duty two tours of in Vietnam. And according to his statements to the doctors, he had been a truck and driver repairman and a helicopter crew chief and a door gunner factors, while in Vietnam. So considering those court doesn’t feel that age is either a mitigating or aggravating factor.”
It thus is clear the evidence, court considered defendant’s age-related but determined the evidence did not rise to a sufficient level of persuasiveness establish a mitigating circumstance. The record this determina- supports Brown, (See tion. generally Cal.3d at 456 and p. cases In a cited.) related vein the court later expressly noted as factors in mitiga- tion defendant’s mental retardation and immaturity. emotional There was no error.
Defendant’s claim concerning the effects of his Vietnam *36 is experience equally meritless. Under both (c)—whether factor the defendant was under “agonized greatly context, had days.” over it for three Viewed in it is evident the ref court’s any difficulty erence particular was not to determining in appropriate penalty the for defend ant, rather, general difficulty but to a accepting responsibility, usually the unfamiliar borne by jury, determining capital sentence in by case. This is borne out the court’s remarks waiver, following jury “Obviously defendant’s where it stated: I’m not anxious assume to this responsibility. It isn’t the responsibility kind of lightly that the Court takes and it the isn’t responsibility hand, kind of that the court is anxious to seek. On the other it is one of the re sponsibilities of the office particular that I hold at this time." 58 disturbance, (g)— and factor extreme mental or emotional
the influence of to capacity ap- the defendant’s impaired mental disease or defect whether to re- the criminality conduct or conform his conduct the of his preciate law, “was not found defendant specifically the the court quirements (j)—sympathy Under factor stress disorder.” acting post-traumatic under background “the historical factors the court noted generally, specifically by to his mother sister relating provided the defendant information witnesses, . .” necessari- background . information the various This expert two Army, including in the ly defendant’s “substantial time included Vietnam,” defendant’s discussing referred to the court duty tours of Mr. Wulbrecht. at defendant’s length expert, mental and testified to age circumstances, general psychologi- failure to refer the expressly In these not assertedly experience of defendant’s Vietnam arising cal effects out error.
J. Burden Proof when ruled that “neither
Defendant contends the court erred it . . in the trial . .’’He penalty side has burden of of this proof phase the beyond-a-reasonable-doubt the recognizes this court has held standard of the not penalty on the of the death is proof question appropriateness (See 142, v. 25 Cal.3d 178- constitutionally (1979) Frierson required. People 281, accord, P.2d v. Jackson 28 587]; People (1980) 180 599 Cal.Rptr. [158 v. 149]; Rodriguez, Cal.3d 315 618 P.2d Cal.Rptr. People however, He the statute].) at pp. argues, Cal.3d 777-779 supra, burden on the omis failing prosecution. court erred in allocate This sion, asserts, door “to a determination of the death opened flip the coin penalty.” penalty
The court’s statement related to order and number of phase the court relied on arguments permit. determining question it would v. 66 Cal.2d 426 P.2d Bandhauer People . . . 900], this court “At the trial on issue of penalty, where stated: neither side has burden of that one the other is proving penalty . . .” one . proper not, say urges,
To that neither side bears burden is arbitrarily Prerequisite incur the death will risk the sentence be imposed. find beyond the trier of fact must true reason- imposition penalty consider, be guided able at least one circumstance and must special doubt by and circumstances. weigh specific aggravating mitigating (People Jackson, Frierson, 315; 28 Cal.3d at Cal.3d p. supra, statute, in this 180.) applicable by Pursuant to deemed court p. if finds only the death can be the trier of fact respect, applied *37 circumstances. aggravating outweigh mitigating (People circumstances Moreover, Rodriguez, 779.) Cal.3d both 1977 and 1978 statute the trial court to review the trier of fact’s determination require to assure the evidence it. weight of the supports sum, the court’s was not error. burden-of-proof ruling K. Absence From Penalty-reduction Hearing and Defendant's Sentence.
Defendant contends his at absence the sentence-modification hearing of sentence imposition requires reversal of the The judgment. facts relevant to this claim are as follows.
Immediately after the court announced its decision that the death, this case should be the court allowed defendant to make a statement. In his statement defendant expressed remorse for the death of the two women.15The court then set the matter for penalty-reduction hearing and sentencing. Defense counsel informed the court defendant wished to waive his presence at the penalty-reduction hearing. The court declined to take time, the waiver at that but asked counsel to prepare submit written waiver, which it would consider at a later time.
Six weeks later counsel filed a written waiver executed by defendant and by both approved waiver, defense counsel and the The prosecutor. an adap- tation defendant, of the form set out in section stated that been having advised of his right to be present all of the stages “hereby proceedings, waives the right to be at the present motion hearing or other proceed- cause, ing on this . . . when a [including] motion to reduce sentence is heard, . . . The undersigned hereby requests the court proceed during every absence of his which the may court permit to this pursuant waiver, hereby agrees that his interest will be deemed represented at all times the presence of attorneys the same as if the defendant himself were personally . . present court . .”
At the commencement of the penalty-reduction hearing court noted defense counsel were present defendant was not and waiver of defend- ant’s appearance had been filed. The court further noted the form spe- cifically waived defendant’s presence at the modification hearing and “at all of the stages proceedings,” but did not refer expressly time of imposi- Honor, 15 Defendant said: injust “Your I know the crime I did girls, to the two [s/c] my and I my look at it with right remorse. If I could bring take life girls now and those two life, it, back to I would do but I bring know that I can’t you gave them back to life. And what me, understand, you I hearing my and thank case.” *38 60 waiver conclusion with the court’s agreed Defense counsel
tion of sentence. the The court then denied the was inferred from document. of the latter death. the formally imposed judgment penalty-reduction application sen- be at the statutory right present Defendant’s constitutional dispute. not in sentence is hearing imposition modification tence 819, 806, I, fn. Const., 422 U.S. 15; (1975) Faretta v. (Cal. art. § California 562, v. 291 U.S. 2525]; (1934) S.Ct. Massachusetts Snyder 15 L.Ed.2d 95 [45 Jackson, 674, 330, 97, 575]; v. 54 S.Ct. 90 A.L.R. 105-108 L.Ed. [78 977, is whether he 309-310; 1043.) at The question 28 Cal.3d pp. supra, §§ and, so, it here. effectively waive waive the if did right could in of the presence case the argues capital personal Defendant be mandatory is and cannot waived. every phase” at “critical defendant 574, 262, L.Ed. 4 v. 110 U.S. 579 (1884) he cites Utah Hopt support [28 decisions, 1984) Wainwright (11th v. Cir. and two federal Hall S.Ct. 202] 766, Eyman 1972) v. Cir. 456 F.2d (9th F.2d 775-776 and Bustamante 733 269, 273-274 (plur. opn.). Court stated a in the United States
Although Hopt, supra, Supreme of the not at critical presence stage defendant could waive his capital the was on a statute defendant’s holding mandating based proceeding, 265]; at Diaz v. United U.S. at 578 L.Ed.2d see presence. (110 p. p. [28 442, 500, 250]; Snyder 32 S.Ct. see States 223 U.S. 458 L.Ed. also (1912) [56 * Massachusetts, 117, fn. about Hopt v. 291 U.S. at said p. supra, [What Massachusetts, Snyder v. at dictum].) supra, presence Subsequently, federal constitu 678], 106 L.Ed. at court stated the page page high . may . . be or at times even right tional “no doubt lost consent Thereafter, 337, 343 (1970) in Illinois v. Allen 397 U.S. misconduct.” 353, held a can lose 1057], L.Ed.2d 90 S.Ct. the court expressly at trial if he manner. disruptive his be conducts himself right present Missouri U.S. L.Ed.2d recently, Most Drope waiver was an 896], high 95 S.Ct. court indicated the question has Notwithstanding one. 11th Circuit taken foregoing, open trial. stage critical presence view a defendant cannot waive (Hall 775; Bustamante v. Wainwright, 733 F.2d at see also supra, p. Ferguson, J.].) 456 F.2d at Eyman, opn. p. [lead 477 U.S. (Fla. In Peede v. State 474 So.2d certiorari denied 1985) 575, 106 Court took a 3286], Supreme L.Ed.2d S.Ct. the Florida 909 [91 United different that in 420 U.S. Observing Drope, supra, view. question Court left of whether Supreme expressly open presence States waived, the determined waiver was may permissi- at a trial be court capital noted, rule Federal 43 of the ble. the Florida court Subsequent Drope, *39 Procedure, to of Criminal the defendant’s relating presence, Rules cases, and capital noncapital to eliminate the distinction between changed in a as well as a case to waive capital noncapital thus defendant permitting be at in two at 812- right (474 trial circumstances. So.2d present pp. The in 813.) “just noncapital Florida Court concluded as Supreme cases, and, just is for the defendant’s presence requirement protection voluntarily right, he can waive constitutional knowingly other if stages defendant can waive his to be at of his trial he right present capital personally voluntarily (474 chooses to absent himself. So.2d [Fn. omitted.]” otherwise, reasoned, at 814.) To hold the court would force a defendant p. “the into untenable position having to the courtroom to such an disrupt removal, extreme as in thereby seriously to result case.” prejudicing his Allen, 815, (Id. at v. p. Illinois 397 U.S. 344 citing supra, at L.Ed.2d at p. [25 Procedure, p. See 3A generally Wright, Federal Practice and Criminal 359]. 723, 2d (1982) 18.) p. §
The issue this state is evidently (Cf. of first Odle impression. People v. 386, 45 137, (1988) Cal.3d 407 and fn. 8 754 Cal.Rptr. P.2d [247 184] for presence v. rereading testimony]; Grant 45 People (1988) [waiver 829, 444, Cal.3d 845-846 755 P.2d Cal.Rptr. at proceed [248 [waiver 894] ings not necessitating presence].) defendant’s Having considered the matter closely, we find the reasoning of the Florida Supreme Court persuasive. waiver, moreover, Permitting is consistent with the solicitude shown modern jurisprudence defendant’s prerogative waive the most crucial rights. A capital may defendant waive counsel repre sent himself in v. propria persona (Faretta California, 422 supra, 806; U.S. v. 936, People Joseph 339, (1983) 34 Cal.3d 943 Cal.Rptr. 671 P.2d [196 Deere, 843]), he may jury waive trial v. 41 (People supra, Cal.3d at 359- pp. 360), he may decline to on a put defense the guilt phase v. Teron (People 103, 23 633, (1979) Cal.3d 108 Cal.Rptr. 588 he 773]), may, P.2d with [151 counsel, the consent of plead guilty underlying charges and the Chadd, alleged special 739, circumstances v. 28 (People supra, Cal.3d 746), may testify to his preference sentence death v. Guzman (People 915, 45 (1988) 467, Cal.3d 961-962 917]), 755 P.2d and he [248 need not participate the presentation of the defense at the penalty phase Teron, Deere, People 108, 115, v. (compare supra, v. pp. with People 41 Cal.3d at pp. 363-364). If a capital defendant may waive detriment, counsel to his if felony other defendants may waive their right to presence 977, at various of trial stages 1043; v. (e.g., Taylor §§ United States 414 (1973) U.S. 17 L.Ed.2d 194]; 94 S.Ct. People Rogers (1957) Cal.App.2d 414-415 949]) P.2d and at sentence (§ 1193; Brown Cal.App.2d P.2d 609]), we see no sufficient reason not to permit capital to waive the right to be present as well. Our statutes governing waiver make no distinction unless and (see 1193); felony other defendants capital
between §§ Consti the federal Court should determine Supreme until the United States it, matter of such a distinction as a impose we decline to requires tution constitutional law. state validly waived his turn a determination of whether defendant
We then to form, defendant’s written waiver section compliance presence. *40 court, he been advised of and waived expressly filed with leave of stated had Although is heard. to when a motion to reduce sentence right his be present counsel executed in court as the statute open requires, the form was not defend- and had informed the court of presence orally earlier in defendant’s to (referred at the hearing ant’s wish be absent sentence-modification and had counsel to trial”), “motion for new the court asked counsel We defendant’s waiver sub- and submit a written waiver. believe prepare so as to a valid waiver of his stantially with section 977 constitute complied (See In re Ibarra hearing. to be at the sentence-modification right present 277, 538, 666 980].) 34 P.2d Cal.3d 284-286 contrary We reach to waiver of defendant’s conclusion respect be at the present Although sentence. defendant could right imposition Brown, 1193; v. right (§ supra, waive his to be at sentence present reasonably waiver form be con Cal.App.2d 60), defendant’s cannot of his at the intelligent strued embrace and waiver knowing presence We must determine the effect of the prejudicial time of sentence. therefore su California, error under the standard of review v. Chapman (Chapman 705, 18, 386 U.S. 710-711]). L.Ed.2d pra, imposition Defendant his absence at the of sentence him argues deprived of the to address the court and make a statement before opportunity pro- Defendant, however, made judgment. nouncement of final a statement to the court its verdict and the sentence modification following sentence before time, therefore, likely hearing—at open when court was most In his acknowledged reassessment of its determination. statement defendant fully his and his He stated responsibility for crimes remorse. expressed court’s and it for his case. hearing understood the decision thanked At therefore, time of had judgment, court heard pronouncement carefully and had defendant’s of remorse twice deliberated expression made. In the length arguments over the evidence and the presented case, of this where defendant had at the time that spoken circumstances mattered had already most where the court exercised its discretion exercise, reviewed we find little have cho- likelihood would sen to be at the time of and further find that his absence present judgment beyond was a reasonable doubt. harmless
L. Cumulative Error. that if we find error itself urges single requires
Defendant no reversal, of the was Central to his prejudicial. cumulative errors impact court determination of to be argument premise is found the indicated, extremely (See difficult and As we this fn. reject close. premise. ante, p. 56.) Having carefully reviewed the record and considered the closely, matter we are of the view there no of a possibility is reasonable more result favorable to defendant in the absence of the identified beyond errors their cumulative reasonable impact harmless Brown, 448; California, doubt. 46 Cal.3d (People supra, Chapman 386 U.S. 710-711].) L.Ed.2d M. Constitutionality 1977 Statute.
Defendant
that we
asks
reconsider the
v. Frier
decisions People
son,
Jackson,
supra,
25 Cal.
142
3d
v.
28
People
supra,
Cal. 3d
which
upheld
general constitutionality
of
1977 death
law.
penalty
First, he urges reconsideration of
beyond
our determination that
proof
reasonable doubt of the
death is
appropriateness
constitutionally
not
Jackson,
(Frierson,
required.
supra,
180;
25
at p.
Cal.3d
28 Cal.3d at
supra,
315-317;
pp.
see also
v.
People Rodriguez,
42
supra,
Cal.3d at pp. 777-779
law].) He maintains that because far less valued interests are
[1978
protect
ed
the beyond-a-reasonable-doubt
standard
re
(e.g.,
(1970)
Winship
Defendant’s
analogy
attempted
to fact-finding
is
proceedings
inapt. At
the penalty
of a
phase
trial the
capital
already
defendant has
been proven
guilty of a capital
beyond
offense
a reasonable doubt.
sentencing
“[T]he
normative,
function is inherently moral and
factual;
not
the sentencer’s
power and discretion under both the 1978 and 1977 provisions is to decide
the appropriate penalty for the particular offense and
ail
offender under
relevant circumstances.”
v. Rodriguez,
(People
779;
Cal.3d at
supra,
cf.
p.
Bandhauer,
v.
People
66 Cal.2d
supra,
530-531.)
The
pp.
statute’s failure
a beyond-a-reasonable-doubt
impose
standard on the decision regarding
the appropriateness
death is
not violative of equal protection.16
16By letter
argument,
after oral
defendant has directed our attention
recent case of
(9th
1988)
v.
Adamson Ricketts
Cir.
Second, the cruel and unusual statute violates asserts the 1977 defendant federal Constitutions. state and process and due clauses punishment Const., We I, 7, 15, Amends.) 14th Const., 17; 8th and U.S. (Cal. art. §§ Frierson, supra, defendant in adversely People resolved these issues Jackson, 264. We adhere to those Cal.3d Cal.3d 142 decisions here.
N. Disproportionality. child and difficult to his mental and emotional
Pointing problems hood, constitutionally is sentence argues disproportion death entirety, that in view of the in its we believe Having ate. reviewed record rejected. the claim must be undisputed facts
III. Conclusion is judgment The affirmed. Kaufman, J., J.,
Lucas, J., J., C. concurred. Arguelles, Eagleson, MOSK, I dissent. J. Unlike recognize enormity
Like the I defendant’s crimes. majority, *42 v. recognize the I also error majority, prejudicial Skipper (Skipper 106 S.Ct. was 1669]) South Carolina U.S. 1 L.Ed.2d (1986) death, In the choose judgment majority committed at trial. the of affirming reverse, I In I follow as voting merely to overlook the error. to prejudicial must the path principle. of
I. I and on Before can of error its effect the discussion proceed Skipper outcome, length. the I must the facts at some review jury The was the to a waiver of penalty retried to court phase pursuant the and retrial the by trial the defense. The on was not prosecution judge trial. court judge by who had over the initial Before the presided stipulation the action testimo- parties transcripts testimony were this and prior ny in a initial trial. habeas conducted corpus proceeding subsequent creating appro penalty presumption a that death death statute unconstitutional was penalty priate punishment. light In substantial dilferences between Arizona death statute, nothing suggest a similar statute California’s 1977 we find in Adamson to deficiency (See sentencing process People the 1977 statute nor in the in defendant’s case. 858, 883-884; Easley, ante.) fn. 34 Cal.3d see also charged. the crimes The Those described the circumstances of transcripts 31-32 is recounted Robertson Cal.3d tale ante, 279], majority 655 P.2d which is in the quoted opinion, 28-30. pages case-in-chief, out show that the prosecution penalty its set of the initial trial phase death was for defendant. At the appropriate the defense had to demonstrate that defendant’s was attempted culpability by reduced reason mental disease or defect. In evident of the anticipation here, case it called several expected prosecution defense present expert witnesses. Gericke,
Dr. Otto testified that defendant had a psychiatrist, character disorder, immature, emotionally was exhibited adolescent attitudes behavior, and was of low average intelligence; at time of the crimes in he sane question was and acted with undiminished he had not capacity; defect, any suffered major organic brain damage, had no mental disease or offender, a mentally was not disordered sex and was not affected post- traumatic stress disorder. McEwen,
Dr. Oren a psychologist, stated that defendant was of low average intelligence and had rejection and experienced overprotection as child; disorder, he had a passive-aggressive personality dysfunction arising out of with fear dependency coupled of loss of significant support anger neurosis, or he rage; had no psychosis did suffer from not mental defect, disease or and was not affected posttraumatic stress disorder. Dr. Robert Flanagan, psychiatrist, testified that defendant was a schi- zoid personality with a mixed character disorder features; with antisocial sexually aggressive, gratification received from inflicting pain, had feelings of inadequacy; he was of average intelligence but lacked insight and *43 had concern only himself; neurotic, for he was not psychotic or did not defect, suffer from mental disease or and was not affected by posttrau- matic disorder; stress he continued to be dangerous. Larkin,
Dr. Charles a psychiatrist, stated that defendant did not a have disorder, passive-aggressive personality but a a personality disorder of antisocial, type mixed with aggressive, and borderline features with poor control; impulse he was of borderline to low average intelligence; as a child slowly he developed trauma; and suffered emotional he exhibited antisocial behavior; disease, distortion, he had no psychosis, mental reality was not disorder, affected posttraumatic stress and disorder; had no neurological he might continue to be violent. Ramsaran, a men- that defendant was a testified psychiatrist,
Dr. James disorder with personality and had an antisocial tally disordered sex offender gratification. to acts obtain sexual a to commit predisposition had a a stated that defendant Tansey, Dr. David Finally, psychologist, antisocial features. disorder with passive-aggressive personality that death also appropriate, prosecution its was support position To in night F. testified that one introduced evidence of crimes. Ernest prior he went he man in Marine 19-year-old Corps, when was a enlisted Yuma, Arizona; a in at he met man who introduced drinking out a bar “Tex”; outside he and “Tex” the desert hopping; himself as went bar Yuma, him, him jabbing “Tex" a knife to his neck and placing attacked him oral as he held “Tex” forced to to weapon; copulation with submit “Tex” threatened knife at his and and groin jabbed; repeatedly testicles desert, him; him in the also to kill mutilate and leave him and threatened to attack, and soon he managed escape; he offered no resistance to filed; trial the incident were never he police, charges but reported that defendant was the man he had known as “Tex.” stated P. in a night standing Kim testified that one 1976 she lot parking Ontario, behind, California; at a truck a man her from stop approached throat, automobile; they off; a knife to her and forced her into his drove put soon, there, on; area; band at a he they a citizen’s radio was arrived remote knife; her to disrobe and then cut off her with his he compelled underpants women, her; her he hated said he was to kill he repeatedly goint told head, face, breasts; her about the he violated her with a Coca-Cola beat bled; her bottle until he lit into her and called vagina put cigarettes vagina “cry baby” orally her a he her to complained pain; when she forced her, him; he from a had with copulate pair bag took she underpants they were band saying for collection he soon citizen’s radio kept; crackled, distracted, fled; he became he the area she cruised around her; ten threats kill made shouting good five or minutes that would she her the incident she escape police; identified reported her assailant. felony
Defendant was with four counts as result subsequently charged Code, on P.: (Pen. 209), of his attack Kim assault kidnapping § (id., 245a), deadly weapon likely produce assault means of force § bodily injury and “sex forcible oral great (ibid.), specifically, perversion,” *44 288a, (id., a (d)). negotiated subd. Pursuant to he copulation disposition, § to oral and the were guilty copulation charges forcible other dis- pleaded year jail, missed. He was sentenced to one in and was on placed probation to, conditions, years three other “Obtain subject among compe- for that he and counseling program” tent or care or other psychological psychiatric deadly any dangerous weap- “Neither nor have under his control possess 5) on. a
Finally, A. that in 1977 man night driving Catherine testified one her she a street San wagon approached walking along station was services; Bernardino; he offered her for she and then pay accepted to sexual said, vehicle; you man “All right, fucking entered pulled gun, now,” they bitch. I’ve and when arrived at a got you on; whore drove area, remote he told her to in the of the remove get wagon back station and so; her; her and she he said had kill clothing, repeatedly did he to she asked why; he if did responded go he not she would to the she she police; replied would not she voluntarily—all since had entered his car the while generally bled, him; mollify to he attempting sodomized her until she her forced him, orally and her copulate face; masturbated in he beat her breasts and them; seemed be obsessed he took her underpants, saying he wanted them eventually, collection he he her kept; told out of get car, off, and did so; she he began hurriedly dressed; drive and she he then turned the car back and she hid in a he nearby cemetery; drove up and down for about 20 minutes eventually left; she did not report trial, incident at filed; that time and charges were never she identified defendant as her assailant. case-in-chief,
In its the defense endeavored to show that death was not the appropriate penalty: childhood, defendant had a mildly traumatic was retarded, mentally had low intelligence and poor was in judgment, and a 12-year-old essence boy body man; of a at the time of the crimes he by affected posttraumatic stress disorder as a result military service by Vietnam brief reactive he made an psychosis; adjust- had excellent incarceration, ment to had sincerely become religious, would behave well in prison and danger no pose to others.
To support evidence, its position defense introduced through defend- witnesses, ant’s mother and sister and expert defendant’s concerning life before the commission of the crimes in The question. evidence paints the following picture.
Defendant was born in Los Angeles in of a product traumatic birth preceded labor of almost two days. full He had older an sister. He developed slowly; old, not did until he speak years was about two did not walk five, until he was two and half. At his parents were divorced. His mother was awarded custody thereafter, of him Shortly and his sister. his father kidnapped the children and took them to Virginia. years Two mother, remarried, later then got the children back. For the remain- *45 sister, childhood, cruel by his who was defendant was dominated der of his mother, who and forth between his was shuffled back overbearing, and and and his evidently long psychological problems, hours and had some worked and rejected a he was once who was strict grandmother, disciplinarian; he low days, he had difficulties: had From his earliest school overprotected. age- relentless from his ability, mental received abuse hyperactive, was mates, he was years At nine of age, and in antisocial behavior. engaged Hunt, mildly Dr. him as Guy diagnosed examined who neurologist, mentally damaged. retarded and brain possibly adulthood, the Job and served joined Corps
As he defendant approached in the For the next years. Army. a term of In 1967 he enlisted about two duty he did years military. he in the In that two tours of eight period, served Vietnam, he a truck years. three In served as in Vietnam almost totalling and While and and as a crew chief door repairman helicopter gunner. driver horrors, there, who many he the loss of a stepbrother witnessed experienced combat, killed in himself in the of war. savagery was and participated States, adjust- When he the United defendant had returned to difficulties he had military; to the less environment of the ing peacetime structured and feelings suffered from nightmares problems, depression and sleeping detachment, fantasy to be in “a world.” In while living and seemed Beach, years he married a his who had Long stationed woman senior he marriage. children The union ended in divorce: previous quickly emotion- was unable shoulder and was closer mental and responsibility al level to his children than his wife. wife’s Army
In in the refused. attempted 1975 defendant reenlist but was old, Thirty years he returned to his home. He unable to learn mother’s was skill unable to hold he Kim P. and job. usable and was attacked an in the jail. was sent to In 1977 he was released and obtained apartment year, mother Later that killed Karen complex same which his lived. Kimberly Ann Litzau Gloe. and
To that death not the defense also support position appropriate, its was Hunt, Dr. expert testimony. neurologist who had examined presented nine, defendant at that had suffered brain age organic stated adversely damage judg- his mental abilities and affected his impaired retarded, insight, mildly mentally ment was not amenable treatment; he since has not or infancy get, has had troubles been able to of, advantage take the normal of life his environ- opportunities because of ment, be- because impaired intelligence, judgment, insight, factors; mental cause of other there to be no genetic appeared specific psychiatric disease from which defendant suffered and no plain explanation *46 behavior, during the it was that he was although possible psychotic for his that defendant had of the crimes in Dr. Hunt believed question; commission and therefore suffered definite of his mental functions should impairment no death; pose danger not sentenced he that defendant would implied be to well of setting to others and would in fact do in the structured prison. Postman, was Dr. Robert a testified that defendant of below psychologist, retarded, mentally average intelligence, mildly was probably perhaps disorder; had an at the time of the in question antisocial crimes personality rooted, alia, he was reactive inter suffering psychosis deep from brief a Dr. women; hatred of believed that no Postman defendant would pose danger setting to others in the structured in fact be prison would productive there. Wulbrecht,
Thomas S. the director the Vietnam Veterans Outreach Riverside, Center in testified about experiences defendant’s in Vietnam and the effects of those experiences substantially on his psyche, giving all evidence on this which is point summarized above. Wulbrecht that stated defendant exhibited posttraumatic chronic stress disorder overlaid an with disorder; antisocial personality posttraumatic stress disorder could lead dissociative state wherein the subject would revert to the “survivor mode” consciousness”; combat in an “altered state of the commission crimes in question state; consistent with behavior such it was also consistent with behavior under brief reactive psychosis.
Finally, the defense presented evidence that show defendant would not pose danger to others if he was sentenced to life without imprisonment possibility parole, and indeed would conduct himself well and lead a useful life within the limits imposed incarceration.
Deputy Sheriff Roger Coyle testified 1976 and 1977 he worked at the Glen Center, Helen Rehabilitation county at which were prisoners housed; defendant was one of his charges; he conducted himself well in custody any and never caused disciplinary problems; one on occasion Depu- ty Coyle transported defendant and several other inmates to a county hospi- tal; while there Coyle inmates, Deputy was attacked by one of the fight ensued, and he lost control of his gun; danger to himself defendant pushed the other against inmates a wall to prevent them from getting gun.
Sergeant Riley, Gerald who had been a correctional officer on “Death Prison, Row” at San Quentin testified that readily defendant adapted incarceration and was “an outstanding prisoner” had “never been problem. He’s always—he just seems like gets he along everybody well. rules, seems regulations”; He follows the along
He with staff well. gets he is a hard fifth-grader; of a fourth- or have the worker intelligence inmates; he arrived on when for the staff and other eagerly does favors *47 Row,” time ago, in some had an interest pornography; “Death he obsessive Mariney however, Row” inmates he the Bible with “Death studying started Christian; a a Payton “born-again” and became and William Joseph result, than prisoner became an even better away he and put pornography would been; pose believed that defendant Sergeant Riley he had previously in no to others danger prison. Row,” Greene, on “Death gave who a correctional officer
Norvell was he Riley’s; similar in all to testimony Sergeant emphasized that was respects and very presented disciplinary problems, that defendant was no passive, Payton. Joseph activities inmates religious participated Row,” who an inmate on “Death testified that when Mariney was Joseph, obsessively pornogra- he defendant in defendant was interested met study to the Bible with Joseph baptized began late in was phy; read, he Andy I read can but defendant—“Mostly Andy would because time”; if a after word. One word at a when period every reads as there’s Christian, was a arrived on “Death Payton, “born-again” inmate who also Row,” able further education—“Bill religious was defendant’s Joseph had friend that had sent some recorders to some of [Payton] a tape Andy. on row and one to And what we myself Christians and one did, he on Andy we the Bible on so could listen to Bible got tape Bible, kind Andy . . . Bill send tape. picture Then had his wife to worked, oh, marvelous”; that And that was stated Joseph are for kids. that change say maybe that “a didn’t take I would until significant place kind of at Andy trying latter of ’82. Because was to learn but he is slow part however, added, that he is at when learning—like reading”; Joseph “tremendous”; it that defendant was did take was stated change place remorseful” about his crimes. “very inmate, Payton, testimony “Death was gave
William another Row” that de- substantially change similar to that of he stated that the that Joseph; it completely had not a superficial change, fendant exhibited “was was added, heart”; he I think most the inner man. was inside in his “And It it, you know. Andy always to me that tried to impressive thing apply study].” Whatever we were Bible learning [in rebuttal, who that he did called Dr. stated prosecution Flanagan, tic diagnosis posttrauma not with the of brief reactive agree psychosis disorder. stress When argument. argument then was com- closing
Counsel presented day. it render the following the court stated that would its decision pleted, arrived, day When that the court declared it was “not prepared today” days. rule on case and continued the matter two [the] On the date to it had continued the the court an- proceedings, which Because of their nounced its decision statement reasons. provided here, importance the court’s words must be quoted length. “The right. Court: All The Court is at this time to make prepared *48 give decision and a statement of I indicate is probably reasons. should this the most difficult decision I have in the I years had make that have V2 now, been a I days have over it judge. agonized greatly three but the my is statement following of reasons and determination: “In making the determination whether the be life shall death or imprisonment, the Court has taken by into account and been guided the and aggravating mitigating by factors the shown evidence and referred to Penal Code Section 190.3 as follows:
“Factor A: ‘The circumstances of the crime of the which defendant was convicted in the present proceeding any and the existence special of circum- stances found to true be pursuant Section 190.1’ the Penal Code. factor,
“As to that the Court the *49 and criminal circumstances these two crimes the defendant’s surrounding All that from antiso- history. experts agree the the defendant does suffer an cial character disorders. possibly character disorder other a history gratification
“His criminal shows with sexual preoccupation from males or Ernest at to submit knifepoint either females. was forced [F.] by to homosexual attack which was threats accompanied repeated the at jabbed groin mutilation. He was in the neck and the area and testicles stress, knifepoint, causing although physical inju- extreme mental no actual ry. relatively after a managed Since he offered no resistance and escape encounter, actually short no ever he danger one will know how much was victim, very in. the sex for of the the circumstances of this crime was Except crimes Kim against similar to the and the assaults against original [P.] is, knife, case; bodily two murder victims in this that the use of a threats of harm, harm actual and threats death. infliction was from lot a knife “Kim kidnapped parking knifepoint [P.] her that held to Mr. being held to throat similar the fashion it was [F.’s] breasts, throat. She was beaten about the face and the told that the defend- her, women, ant to kill that he she was going was hated that physically a Coke until she She was bleeding vagina. abused with bottle was from cigarettes crybaby burned in her and was called a lighted vagina inserted Fortunately when also able to complained she of the Kim was pain. [P.] the defendant’s was the CB. Defendant escape when attention distracted after her escape the area for five to ten minutes cruising continued around was to kill her. shouting going threats that he different in that a was gun “The assault on Catherine was somewhat [A.] knife, ultimately voluntarily rather she released after used than was her similar to the four-and-a-half-hour ordeal. The crimes were against kill other- others that the defendant threatened to her because repeatedly her go wise she would to the He seemed obsessed with breasts police. she sodomized until she was bleeding. breasts,
“The Court notes the with the similarities in this preoccupation area, that he had beaten both Kim and Catherine in the breast [P.] [A.] body he cut off from attempted to the breasts of Karen Litzau and actually Kimberly cut off both breasts from Catherine [A.], Gloe. unlike others, defendant, very tried hard aggravate not insisted repeatedly that she would not him report police voluntarily to the since she’d gotten car, he eventually into his her allowed to leave the car and he drove mind, however, He away. changed his apparently shortly because after- he wards came back to the area and drove and down the streets about up 20 minutes while Catherine hid. [A.] case,
“In the case of the victims in only this from reasonable inference evidence, it, Court views is that he them intended to when he rape first up they them picked voluntarily unless submitted demands. He carried the knife to force if they submission He may should resist. have actually preferred to use force because that then him an gave excuse for inflicting When pain. the victims threatened to turn him in to the police, determined he would kill them to this. prevent
“The strongest to the indication Court that he was a not in brief reactive psychosis at the time is the fact he that tried to cut off Karen Litzau’s at murder, breasts the time of the first was unsuccessful in doing so because dull; the knife was and that between that and second assault he had sharpened knife and then did actually this act. This accomplish strong is indication to the Court that might have killed the they victims even if not had threatened to turn him in police. to the It is noted that he had made threats to kill Kimto [A.], Catherine well as as threats to maim [P.] Mr. [F.].
“There is no evidence introduced either as aggravation mitigation or D, E F factors or of Section 190.3. So the Court won’t discuss those. “Factor G: ‘Whether or not at the time of the offense the of the capacity defendant to criminality appreciate his conduct or to conform his of mental as a result impaired of law was requirements
conduct to the Court— of the Supreme direction I’m to this adding disease or—’ intoxication.’ the effects of ‘mental defect or intoxication, de- finds the and the Court all evidence at “There’s no mental a result of not impaired regard capacity fendant’s or mental defect. disease the defendant Dr. Hunt that testimony has considered
“The Court retardation, be and that would mild mental a mental defect of suffered from fact, it did not defect, finds that if a the Court but even that is a mental criminality of his conduct capacity appreciate affect the defendant’s The Court has of law. to the requirements conform his conduct or to under or psychosis under brief reactive acting he was not already found and will discuss of the murders at the time stress disorder post-traumatic evidence later. character disorder the antisocial time of the crimes.’ defendant at the H: ‘The of the age “Factor case, his as either age the Court does not consider the facts of this “Under most witnesses Although placed factor. aggravating or mitigating level, fully he had matured 12-year about development intellectual time in the in the and substantial Corps had a term Job served physically, to his duty according in Vietnam. And his two tours of Army, including doctors, and driver and been a truck repairman he had statements to considering So while in Vietnam. gunner crew chief and door helicopter factors, aggra- either a age mitigating doesn’t feel that is those the Court factor. vating factor, I, to this relating evidence introduced factor there was no
“As to the Court won’t discuss that. so of the gravity which extenuates ‘Any
“Factor J: other circumstance the crime.’ it is not a excuse for though legal crime even that the in the decision in this case prior “The Court has held Supreme *51 the defendant or may sympathy pity trier of fact consider properly from mercy and the defendant spare whether or not to show determining in the same case that: from a federal case quote execution and went on to body sentencing to have the constitutionally ‘The is entitled defendant it.’ raised the evidence before consider factor sympathy circumstances, considers that of the Court jury finding special “As to the murders was to of the defendant each of the motivation primary and, ultimately, a assault with infliction of pain sexual accomplish and, also, The the infliction to avoid detection. murders as of of part pain Court, therefore, findings regarding the additional kid- does not consider merely robbery they factors. I think were aggravating to be napping Court consider them to be incidental to the So the does not pain purposes. aggravating factors. Gericke, that the testimony
“The Court has also considered the of Dr. testimony emotionally of low immature and average intelligence, [sic] acting testimony by as an The Court has considered the Dr. adolescent. a diagnosed McEwen that the defendant was as having passive-aggressive disorder, is, dysfunction that a personality personality created out primarily with a and a dependency, coupled fear loss of deal of support great anger rage. Dr. McEwen also stated defendant suffered apparently child, deal great rejection as a together with He overprotection. placed defendant’s intelligence the lower end of average.
“Dr. diagnosed Flanagan from character suffering disor- der, but no mental disease or mental defect. Dr. Diagnosis Flanagan was mixed character disorder antisocial features aggression and sexual Dr. inadequate Tansey feelings. diagnosed defendant as passive-aggressive personality with antisocial features. Dr. Larkin that testified defendant had borderline to normal low He intelligence. also testified that defendant trauma, suffered childhood emotional slow intellectual development and evidence of diagnosed antisocial behavior. He defendant as having person- ality disorder of a mixed with antisocial type and borderline aggressive features with poor impulse control.
“Dr. Ramsaran diagnosed defendant as an antisocial personality with predisposition to act for personal gratification. Dr. Hunt testified that at the and, also, assault, time of the murders the Kim the defendant did not [P.] illness, exhibit the mental symptoms specific but the doctor did feel that the defendant had some organic that were problems interfering with his mental ability, with his judgment, insight and so Dr. on. Hunt found no psychiatric for the explanation defendant’s bizarre Dr. behavior. Hunt tes- tified he did not that believe the defendant should receive the death penalty because he has definite of his impairment mental functions. He has had infant, trouble treatment, since he anwas that he was not amenable to life, he’s not environment, had normal opportunities either from his genetic things or fróm his think ability to and use good judgment and insight. Dr. Postman also said defendant was below average intelligence, retarded, probably mildly and that he had an antisocial personality disorder. *52 testimony the also as matters in mitigation
“The Court has considered county hospital the incident at the where Roger Coyle Sheriff about Deputy also, and, his avoid harm testi- the interfered to the help deputy defendant custody of the the conduct while mony general good about defendant’s the two testimony The Court considered the death county here. has also concerning row and row guards prisoners the two death prison defendant’s and, Quentin changes the in his particularly, while San prison, conduct the or interest in Bible newly attitude and his actions since his rebirth found testimony, the is the that study religion. opinion and Based on this Court of any significant as Mr. Robertson he will not long prison, pose is confined including to the other danger public, prisoners prison officials. the historical mitigating “The Court has also considered as factors back- by the defendant his mother and ground relating provided information witnesses, various the circumstances that including sister and the expert birth, until two being age existed at the time of his his not able to walk and talk, half, by his taken his father as delay starting being Virginia his child, California; family a small and his return later to his chaotic relation- school, mother, difficulty in with relationship grandmother his his his ships, sister, difficulties and peers, average his with his his below intellectual or mild retardation. achievement mental summary, there in-
“By way of the circumstances then aggravation of the clude the nature crimes themselves: “First, obviously for the planned kidnappings purpose is by sexual assault and sexual This fact that gratification. supported victims, that he looking potential defendant cruised around carried the knife in violation the assaults on boning nature of probation, themselves, knife bodies the fact that the defendant between sharpened murders, the first and second the extreme mutilation of the bodies before and after death. also in aggravation relating
“The Court has considered factors to the inflicting defendant. He obtained from apparently gratification pain discomfort, both and mental on his victims. physical committed, from the in which the
“As evident manner murders were it is evident from the of his Mr. when held also circumstances assault on he [F.] testicles, Mr. knife to throat and later on to his and to his groin [F.’s] he he this suggested ought when to mutilate victim repeatedly evident with leave him out on desert. It is also from his conduct Kim her, kill her repeatedly where threatened to abused physically [P.] bottle until she her bleeding, burning inserting Coke *53 the head and her about beating as well as vagina, into her cigarette lighted where Catherine his conduct with also from apparent breasts. It’s [A.] her, also, abused her sodomiz- actually physically kill threatened to of her breasts. bruising and his bleeding until she was her ing was obsessed testimony that the defendant in her said “Catherine [A.] victims, because he in line the other to be with breasts and this seemed with breasts, Karen Litzau’s to cut off attempted Kim breasts and also beat [P.’s] fact, did, Kimberly Gloe. cut off the breasts under the the defendant was find no evidence “The Court could the time of the emotional disturbance at any influence of extreme mental or three assaults. murders or of the other murders the defendant at the time of each of the
“The Court finds that conduct and conform criminality of his had the capacity appreciate law, was not and that his capacity his conduct to the requirements mental disease or mental defect. result of impaired that at the time of the murders “The Court has also considered the fact Kim against the defendant was on from the crimes committed probation time. actually undergoing and was at that therapy [P.] “One, by “The Court circumstances in mitigation: has considered doctors, or is testimony average intelligence of all the defendant has low retarded, mildly mentally retarded. emotionally
“Second factor is the defendant was immature. “The third factor is defendant suffered from or character personality or variously disorders described as disorder passive-aggressive personality features, mixed character disorder with antisocial and sexual aggression passive-aggressive with antisocial features or disor- personality personality antisocial, der of a mixed and borderline features with type aggressive control. poor impulse
“Four, may the defendant have that interfered with his organic problems ability, mental judgment insight.
“Five, Dr. Hunt include sympathy factors which were summarized functions, infancy, of his mental continual troubles since impairment treatment, fact that he’s not amenable to that he has not had normal oppor- in life tunities either from his environment or or from his genetic things ability limited to think and to use good judgment. *54 Coyle
“And, six, Sheriff Deputy in to the aid of coming his conduct to himself. some danger to a pose that not appear the he does “The Court does not consider fact a either in he's to to be society long prison as as threat factor confined these
aggravation mitigation punishment for offenses. evidence, considering, taking the after careful of all “After consideration account, mitigating and factors guided by aggravating into and being 190.3, that the the Court determines to in Penal Code Section referred (Italics added.) be should death.” penalty decision, was requested, the court announced its
After Honor, I “Your know to make statement. He said: granted, permission my and I at it with injust I did to the two look girls, the crime was [sic] life two back to my bring girls If I could now and those right remorse. take it, life, back life. And I do I know that I can’t them what bring would but understand, me, The you my case.” court you hearing I thank for gave “Okay, “Have replied: good Mr. Robertson.” Defendant responded: Christmas, sir.” court automatic for re- application denied defendant’s
Subsequently, former Penal Code section (e) duction of subdivision of penalty pursuant death. 190.4 and the sentence of imposed
II. As I record that in whether defend- explain, determining shall shows refused, be ant to live or the trial court or must have presumed die refused, to consider evidence he to show that he would conduct presented if The also that the himself well sentenced to record shows court’s prison. refusal to take evidence into account cannot be held harmless. this
The are well cases the capital here settled. principles applicable “[I]n Amendment, Eighth fundamental respect humanity underlying [ci of the character and record of the individual tation], requires consideration constitutionally particular offender and the circumstances of the offense death, This indispensable part process inflicting penalty [fl] of death is conclusion rests on the that squarely predicate from a however qualitatively imprisonment, long. different sentence Death, a 100-year differs from life than finality, its more imprisonment year qualita differs one of Because of that prison only term from or two. difference, reliability tive in the need for there is a difference corresponding in a specific the determination that death is the appropriate punishment 280, U.S. 304-305 (1976) v. Carolina (Woodson North case.” Stevens, Stewart, 944, JJ.).) S.Ct. Powell (opn. L.Ed.2d 2978] decisions are as individualized sentencing To that guarantee capital demands, Amendment Eighth requires reliable as the Constitution mitigating relevant may introducing the defendant not be barred from Carolina, 4-8 L.Ed.2d evidence. 476 U.S. South (Skipper 455 U.S. 113-115 L.Ed.2d 6-9]; Eddings see Oklahoma *55 586, L.Ed.2d 869]; (1978) 102 S.Ct. Lockett v. Ohio 438 U.S. 597-605 [57 973, course, It also Burger, J.).) requires, 98 S.Ct. C. (plur. opn. 2954] may that “the sentencer refuse consider or be from consid precluded not ” Carolina, v. ‘any relevant evidence.’ South ering mitigating (Skipper [such] Oklahoma, at 4 at v. at supra, Eddings L.Ed.2d p. p. (quoting supra, [90 6] accord, 114 v. 481 11]); Dugger (1987) L.Ed.2d at Hitchcock U.S. p. p. [71 393, 347, 1821, context, 1822].) 394-395 L.Ed.2d 107 S.Ct. this “to [95 merely (see consider” means more than to hear such evidence Miller v. 426, Wainwright (11th 1986) 431): Cir. 798 F.2d it means to listen to evidence, it assign weight, and then take it into account in whether deciding Oklahoma, the defendant v. (Eddings is to live or die at 114-115 supra, pp. L.Ed.2d at 11]). p. [71
It is
that
plain
the class of “relevant
v.
mitigating
(Eddings
evidence”
Oklahoma,
455
supra,
U.S. at
114
at
p.
11])
L.Ed.2d
is broad. Includ
p.
[71
ed within its bounds is “evidence that the defendant would not
pose
Carolina,
if
danger
. . . .”
spared (but incarcerated)
v. South
(Skipper
harmless-error California 824, 705, Under 1065], Chap- A.L.R.3d U.S. L.Ed.2d S.Ct. 18 man, harmless, the error be held court constitutional can “before federal beyond it was harmless reasonable must to declare a belief that be able (Id. When error occurred at 10-11].) at pp. doubt.” L.Ed.2d p. trial, proceed the court must special of a penalty phase capital Texas 486 U.S. e.g., caution. Satterwhite v. (See, that “the evaluation of [stating 108 S.Ct. L.Ed.2d 1798] may of a case be sentencing capital of an error phase consequences sentencer”].) given of the that is to the more difficult because discretion above, in fact occurred must be As I believe that error Skipper stated did majority have assert that the trial court occurred. The presumed of future behavior into account good indeed take defendant’s evidence however, record, The is otherwise. fixing the penalty. *56 in it to take defend- many it did not state so words that refused
Although account, into the trial court made the good ant’s evidence future behavior sufficiently It found—and its is plain by implication. expressly finding point by majority—that and not the by questioned the evidence amply supported if is the dangerous imprisoned: defendant would not be Court “[T]he Mr. is confined to he will not prison, pose that as as Robertson opinion long the other or any including prisoners to significant danger public, prison view, my In the that defendant finding officials.” such entails conclusion in reason is had established the existence of a factor The mitigation. plain: (but since that the defendant would not if pose danger spared “evidence v. must considered South incarcerated) mitigating” (Skipper be potentially Carolina, at evi- 7], added), 476 U.S. 5 L.Ed.2d italics supra, p. p. actually dence on the must be considered persuasive point mitigating found and must given weight. hence be some in influenced Murtishaw 29
But—perhaps language 446], to effect the Cal.3d P.2d the that issue at best relevant dangerousness only marginally or future “is to” choice trial on that the fact it had itself court went to state penalty—the immaterial: “the Court not that expressly found was does consider fact does a threat to as he’s society long not as appear pose [defendant] either in aggravation mitigation confined to to be factor in or prison (Italics added.)1 these punishment for offenses.” 1My reading I trial court’s statement is confirmed when consider the statement closing light prosecutor argument: “It of a comment made the course of could also argued category given be Mr. in this should some mit that Robertson be consideration about lifestyle way acting igation to the fact that he is able conform his in a con due go setting, that in trolled environment. This I think would towards the evidence a controlled testimony that it had “considered
It true that the trial court stated is con- prisoners and the two death row guards of the two death row prison and, Quentin prison, particularly, defendant’s conduct while at San cerning newly found since his rebirth or in his attitude and his actions changes study of religion.” interest in the Bible and it not that in did fixing penalty But it is also true that the court stated consider the fact testimony take such into account: “The Court does not society long that a threat to as as he’s pose does not appear [defendant] 2,” . . . mitigation be a factor either in prison aggravation confined to majority The the trial statement to mean that the evi construe court’s dence conduct—although insignificant on the issue of future not presented in the But weight abstract—was of minimal the context of this case. reveals, the record the evidence is far from insubstantial in either extent or Indeed, relative the defense called Hunt importance. six witnesses—Drs. Postman, Greene, Sergeant Riley and Officer and “Death in Row” Payton—to mates Joseph establish that defendant “would not pose Carolina, if danger (but spared incarcerated)” South (Skipper event, U.S. at 5p. L.Ed.2d at p. 7]). the court made it plain it did not consider the future conduct evidence at all. In the statement of reasons, it said that in it had “taken fixing into account and been guided by” certain specified aggravating mitigating Among factors. those factors there neither appeared defendant’s evidence future concerning *57 good conduct nor its own express finding on the issue. facts,
Faced with the foregoing I am compelled conclude that Skipper error occurred or be must to have presumed occurred. it heard Although the evidence presented by the defense to show future good conduct and went far so as to find expressly that evidence in persuasive, my view the trial court did not take the simply evidence into account in determining whether defendant should be sentenced to death or life imprisonment without possi least, bility of But parole. very at the the record furnishes a “legitimate basis for finding ambiguity concerning actually the factors considered” (Eddings row, such as death he is able to conform. I think this is inaccurate in that the crimes that we talking are away about in Mr. personal Robertson’s case occurred within his life from the society imposes norms or that upon person.” controls a 2 passing In application on defendant’s automatic penalty, for reduction of the trial court confirmed that it had good refused to take defendant’s evidence of future behavior into ac count: “The Court also indicated at time rendered its and the Court did th[e] [it decision] weighing consider these factors that after ap consideration of all the evidence it does not pear presently poses society to the Court long that he pris threat to as confined he’s considering on. And that I aggravation mitigation, pun didn’t consider that to be either in ishment, least, at but the ag Court did make it clear that the Court did not consider that an factor, gravating might danger.” the fact that he still be a 82 Oklahoma, (conc. opn. of L.Ed.2d at p.
v. U.S. at supra, p. 14] O’Connor, J.)). above, in this case was Skipper I also that the error believe
As stated prejudicial. were and factors close mitigating reveals that the aggravating
The record sure, of which defendant be crimes ly balanced. To the circumstances violent together with his prior was present proceeding, convicted heavily in favor death. But defendant’s activity, very weighed criminal retardation, immaturity, personality low emotional intelligence, mental heavily in life. The trial court very disorders favor of weighed character it “I indicate this is probably when said: should clearly recognized point I years make have difficult decision I have had to the 13!A most . . . .”3 days it for three now agonized greatly been a I have over judge. by the defense to presented also reveals that the evidence The record if danger (but incarcerated)” pose spared show that defendant “would not Carolina, 7]) at at p. 476 U.S. L.Ed.2d p. South (Skipper supra, Indeed, any fair standard the far under and reasonable insignificant. from Postman, Sergeant this Drs. Hunt and testimony point presented on Greene, Payton, Row” Riley Joseph and Officer and “Death inmates if must considered substantial not compelling. be cannot a belief that of the I “declare foregoing, simply view [the beyond (Chapman was harmless reasonable doubt.” Skipper error] I California, Accordingly, 386 U.S. L.Ed.2d at p. 711].) at p. cause to that court would vacate the trial court’s decision remand the of penalty.4 redetermination III. cannot be
Because error was committed trial and deemed Skipper *58 only general difficulty majority that the “a The assert trial court’s comment revealed responsibility, usually jury, determining accepting unfamiliar borne sentence in a ante, capital (Maj. 14.) supported opn., p. fn. The assertion is not record. case.’’ First, majority expressly quoted stated in words that the have but otherwise chosen the court greatly days . . . .” ignore: agonized [i.e., now Sec “I have over it for three decision] ond, majority largely ig have also chosen to the court’s statement reasons—which just nore—graphically reveals the case was. how close my agreement majority’s capital passing, holding I with the that a defendant has a note however, agree, right present imposition be of sentence. I cannot constitutional at the may right. waive that their conclusion that such defendant record, beyond a doubt on this I am compelled harmless reasonable dissent.
Broussard, J., concurred. 5, 1989, and the rehearing April was denied Appellant’s petition Mosk, J., Broussard, J., was modified to read opinion above. printed were of the that the be opinion petition granted. should notes defendant has been aby convicted or jury by found guilty jury of separate two counts of first degree murder him, personally committed and has found to be nine true special allega- tions under Section 190.2 of the Penal The Code. were special findings first multiple degree The murder murders. of each of the victims involved the infliction of torture. Each of the murders was committed during the and commission attempted robbery. commission of Each of the murders was committed during the commission and commission of attempted The kidnapping. murder of Karen Ann Litzau was during committed the attempted commission of The rape. murder of Kimberly Gloe was commit- ted the during commission rape. “Factor B: ‘The activity or presence absence criminal the defendant which involved the or use use of attempted force or violence the or express or implied threat to use or force violence.’ factor, “Under this the beyond Court finds reasonable doubt that the defendant was involved in criminal activity which involved the actual use is, threat use victims; force or violence against three separate to the police, various [A.]; Kim Catherine statements [F.], [P.], Ernest made admissions to Kim the defendant psychiatric experts [P.] these were activity, proved but none of criminal possible to other relating them for has not considered beyond reasonable doubt and Court purpose. while the defend- the offense was committed C: ‘Whether or not “Factor mental or emotional disturbance.’ ant under the influence of extreme factor, these the circumstances of “Under this the Court has considered the use force activity involving criminal offenses. The defendant’s prior violence, testified at the testimony and the of all the witnesses that expert or not and at trial. The Court finds that the defendant was penalty phase disturbance of extreme mental or emotional acting under influence that the defend- crimes. Court finds Specifically commission these ant under a stress disorder under acting post-traumatic was not defined as brief reactive psychotic psychosis. state testimony conflicting is careful evaluation of the finding “This based on witnesses, of the as well as the Court’s evaluation of facts expert