*1 S015712.June [No. 1994.] PEOPLE,
THE Plaintiff and Respondent, SHELDON, Defendant Appellant.
JEFFREY T.
Counsel Court, Leavitt, Defendant and Jack under for appointment by Supreme Appellant. General, Williamson, E. Chief Assistant Attorney
Daniel Lungren, George General, General, Schons, Pat Attorney Attorney Gary W. Assistant Shaw, Attorneys Janelle B. Davis and Robert B. Zaharopoulos, Deputy General, for Plaintiff Respondent.
Opinion 19, 1985, was LUCAS, Sheldon Jeffrey C. J. T. December On to and sentenced convicted of first murder with circumstances degree special 15, 1989, in most death. On we affirmed defendant’s conviction guilt May weapon), his for with a respects (reversing only deadly conviction assault for vacated the to the trial court judgment but of death remanded death redetermination of defendant’s modification of the application for verdict. 963 [258 I].) improperly We observed that the trial court had 1330] [Sheldon 962.) Our failed to set forth its reasons for modification. denying p. read as follows: judgment with a deadly weapon
“The
defendant of assault
judgment convicting
but
of
is affirmed
all other respects
reversed. The
conviction
judgment
for
of
is vacated
the cause remanded to
trial court
judgment
death
of
for modification
limited
purpose
redetermining
application
court,
verdict in
If the trial
opinion.
upon applica-
accordance with this
modification,
standards,
of the
denies the
application
tion
appropriate
enter
If it
it shall
judgment
grants
application,
shall reinstate the
of death.
shall
judgment
possibility
parole. Any subsequent appeal
(See People
be limited to
related
application.
issues
to the modification
Rodriguez
[1986]
794-795 (Sheldon
113].)”
supra,
On May held a new on hearing again issue and denied the for the reversed modify. Except application count, assault the court reaffirmed its and remanded previous Quentin defendant to the delivery prison. sheriff for to San state It took more than three and from the date of judgment one-half years remand secure on the appellate counsel and obtain brief opening limited issue of modification of sentence. filed open- his ing brief us on January 1994. The General Attorney responded February 23. Counsel 15. replied to March response *4 counsel, defendant,
According to who been death eight has row for years, believes that a of sentence without of possibility imprisonment him, would parole constitute cruel and unusual as to and punishment applied defendant requests that we “affirm the the death judgment imposing penalty against him.” recites that defendant wants no more “ap- behalf, writs or peals, motions” filed on his and that an instead desires immediate execution date be set. Counsel has a 33- nonetheless prepared page brief attacking various to the death procedures leading latest client, for his so that we can “make whatever are necessary corrections to benefit those prisoners who life without the prefer of to possibility parole But, death. this Court should leave defendant’s sentence intact. As to applied him, torture, endless imprisonment would amount to perpetual unconstitu- tionally imposed defiance of the Eight and Fourteenth Amendments to federal Constitution.” however, also,
Appellate counsel observes defendant has him allowed could, to a “make record which in case defendant modifies his position, some provide of hope avoiding execution.” event, Code, 1239,
In (Pen. any (b)), this appeal automatic subd. § and have we no authority to to allow defendant waive the appeal 49, (1969) Stanworth 889]; 833-834 [80 (1985) see People Deere remarks, 925]).
P.2d In light counsel’s have and foregoing carefully we errors, independently reviewed the to record assure ourselves that no proce substantive, dural or were committed the remanded during proceeding might prejudiced As will defendant. we no errors. appear, found Counsel’s arguments regarding defects this court’s remand order likewise death judgment
are merit and offer no valid to set aside the without reason we will affirm rendered Accordingly, court remand. judgment.
Facts are set forth our former facts defendant’s offenses surrounding brief,'defendant, a during In merely and we summarize them here. opinion, 1983, (1) employ threatened and robbed the three-day September period beat, restaurant, them, robbed, kidnapped, ees of one kidnapping man, (Sheldon supra, death a Norris Neblett strangled sixty-year-old 943.) offense evidence included a 1983 Nevada at p. Aggravating assaulted, robbed, elderly had to kill an in which defendant and threatened included back the Mahans. evidence couple, Mitigating relatives, aby testimony defendant’s ground character disorders, Rath, childhood regarding clinical psychologist, Dr. moodiness, sadness, frus tolerance of anxiety, chronic and low aggression, (Ibid.) tration. remand, hearing
At the permitted evidence, objection by People. introduce additional (see (1993) 6 This constituted error v. Brown Cal.4th procedure motion, ruling on modification Cal.Rptr.2d 710] [in *5 Cooper (1991) 53 People court only jury]; considers submitted to [same]), it was P.2d but Cal.Rptr. 848-849 [281 86] and, indeed, error have benefitted clearly only invited defendant the could The and included him. new evidence was limited matters mitigating Quentin good records and from showing letters San prison conduct, in with his artwork while and his prison, correspondence his that urged defendant witnesses who daughters. Additionally, presented life be childhood frustrating his These witnesses outlined defendant’s spared. rehabilitation, and his and tense and evident marriage, his current remorse a parent. as acceptance responsibility acknowledging hearing,
Defendant testified the modification personally crimes, remorse, his relation- describing his and expressing for responsibility in and his rehabilitation. general his his artwork ship daughters, prison, that while and stayed prison that he has out of trouble Defendant testified if he defendant’s sentence judge sorry” the “wouldn’t be modified imprisonment parole. indicated evidence. As offered no additional prosecution aggravating for the trial court denied the motion modification
previously, and mitigating after the record the circumstances reviewing aggravating in the case. The recited had substan- although that submitted evidence, tial both at at the mitigating present his trial and case, hearing, including brutality circumstances aggravating victim, and cold-blooded nature of the murder of the 60-year-old special in the circumstances course of defend- robbery, burglary kidnapping, ant’s other crimes (including kidnapping involving and assault robbery, victims) other The court elderly circumstances. outweighed mitigating that, feels, concluded “The by stating Court the details considering crimes, cold, of these specifics that are calculated crimes they showing conduct, vicious mitigating that those con- outweigh considerations siderations considering everything that involved.”
Discussion On appeal, counsel does appellate challenge sufficiency not of the trial court’s statement of underlying reasons its denial of modification mo- tion. Our review of the record indicates any challenge would be rejected, for the trial court’s order denying modification sets forth carefully the evidence and states the court’s reasons concluding aggravat- ing circumstances outweighed in the (See, ones case. e.g., v. Kaurish 278].) order,
Instead attacking the trial court’s counsel faults appellate this court for limiting remand to a redetermination of defendants appli cation for modification of the verdict “accordance with this opinion.” (Sheldon supra, 48 Cal.3d at p. Counsel argues the reference to our opinion necessarily inhibited the trial court from “an exercising indepen dent determination whether of the death imposition the defend penalty upon ant is proper light of the relevant evidence and the applicable law.” 730, 793 v. Rodriguez (1986) *6 words, 113].) counsel, In other court, according to the because remand, was bound our legal conclusions as to admissibility preju I, dice in Sheldon no truly reevaluation the independent verdict jury’s was possible. view,
In First, counsel’s our remand order in was two improper ways: assertedly prevented defendant’s counsel from at offering the remand hear- ing further any evidence or argument “significant against issues” resolved Second, defendant by our opinion. our order necessarily the trial required court to our accept legal conclusions the harmlessness of certain trial errors, errors which the trial court might otherwise have found improperly affected the jury’s verdict. counsel, in “limitation” the improper result of supposed as a
According order, issue to decide the modification remand the trial court was forced our rulings or following asserted jury the effect on the considering worst, or, error): at harmless (found either error-free omissions us to be (see written of the instructions (1) copies with failing jury to provide 943-945); (2) leg defendant with shackling supra, 48 Cal.3d at pp. 945-946); (3) not (id. instructing jury at jurors pp. irons visible to some defendant, being not were against other why persons, testifying to consider up to “add (id. 946-948); (4) jury telling penalty phase at pp. prosecuted 954-956); (5) to advise (id. failing all the in at deciding penalty pp. factors” charged offense count the circumstances of not to double penalty jury to continue deliber (id. 956); (6) at ordering jury deciding penalty p. (7) (id. 958-960); admitting 11 to at being pp. ations after deadlocked 952-953, (id. at pp. evidence against “other crimes” improper 961-962). First, much too places lack merit.
Appellate arguments counsel’s The at issue language remand order. language on the literal of our emphasis with “in [our] the court to redetermine the motion (directing accordance our judge opinion intended to refer the trial merely was opinion”) carried no the remand. language the reasons for explanation regarding in which we common to other cases other is special implications (See, e.g., People issue. remanded for redetermination of the modification 892]; People Cal.3d Lewis 292 [266 at Rodriguez, supra, Second, remand our defendant never to the terms of objected previously (see rule for rehearing order. The was neither raised on point petition hearing. the remand Court) during at time any Cal. Rules of nor asserted in which items of particular counsel cites no instances were excluded on this argument ground dr hearing.
Third, remand as requiring bur order be construed assuming may court to resolve accordance questions admissibility prejudice order should oiir we see no reason such an opinion, why conclusions court, in resolving deemed It that the trial be improper. quite appropriate issue, guided by legal principles the modification should be correct case, extent that such our To the as set forth governing opinion. *7 “interfer- interfere with the trial court’s guidance may independence, observe, the trial court’s ence” As the entirely justified. People seems jury’s of the place was not to substitute its view as to obligation penalty verdict, and make an determination reweigh independent but to whether the of the evidence v. Es- weight supported verdict. 204], pinoza (1992) 3 Cal.4th Cal.Rptr.2d cited.) cases Such a determination could be aided our by rulings only Sheldon I.
Counsel also raises certain capital asserted flaws California’s procedures, sentencing including failure to define for the penalty phase jury what evidence is “mitigating” (He and what evidence is “aggravating.” observes, however, “the jury’s present choice of death ... [in case] was a proper response to evidence and arguments mitigation supporting aggravation.”) or Any such substantive clearly contentions are beyond states, limited scope of the As our present appeal. remand order “Any subsequent shall be limited appeal related issues (See application. People Rodriguez, 794-795.)” v. supra, (Sheldon supra, 963; Brown, at see supra, also Cal.4th at p. fn.
The judgment of death is affirmed.
Kennard, J., J., Arabian, Baxter, J., J.,* Kline, J. and George, concurred. MOSK, J. dissent. I
In People
Sheldon