People v. Wharton

Apr. S004769. [No. 1991.] PEOPLE,

THE Plaintiff and Respondent, WHARTON, Defendant and Respondent. GEORGE HERBERT Counsel N. for and

Horace Freedman Defendant Appellant. Mattesich, Olson, Tolies & Bradley Livingston & S. Munger, Phillips, Morin, Adams, Mattesich, Dickstein, M. L. James & Kenneth Shapiro Keck, Cate, S. Mahin & L. Robert and Richard Steven Cohen Engelberg, Leslie as Amici Curiae on behalf of Defendant Appellant. General, K. Attorneys John Van de and Daniel E. Richard Lungren, Kamp General, Jr., B. Chief Assistant T. Iglehart, Attorney Edward Fogel, General, Nicola, Cady Jennifer S. Donald E. De Attorney Assistant General, Breton, for Plaintiff and Attorneys Respondent. D. Robert Deputy Opinion first Wharton convicted in 1986 of the

LUCAS, Herbert —George C.J. his waiving Smith. After advised and being murder of Linda degree a he admitted the truth of single special-circumstance constitutional rights, Code, (Pen. a conviction of second murder. allegation charging degree prior 190.2, unless statutory all further references are to this code subd. (a)(2); § felony suffered various otherwise He also admitted indicated.) having prior 667.5, 667, County subd. subd. A Santa Barbara (§§ (a), (b).) convictions. jury (§ (b).) set the at death. This is automatic. subd. penalty appeal We affirm.

Facts

Guilt Phase call, to a Officer Rivas on response telephone February went to the home of Linda Smith and 5:30 defendant around or an p.m., to locate Smith. Rivas knocked on the door but received no answer. attempt He a observed addressed to Smith in the mailbox. Mrs. a package Lopez, last seen neighbor, Smith about two weeks before. Rivas reported having ladder, hoisted himself to the and procured balcony looked into the up apartment, and himself as a announcing presence identifying police window, officer. an Noticing he removed the screen and entered the open home, no one at Rivas left a note for Smith apartment. Finding and exited the door behind him. After apartment, locking learning from neighbor attic, Rivas, that the contained an time apartment this accompanied Garcia, Officer reentered the and searched the attic but found apartment no kitchen, however, trace of Smith. In the both officers noticed a large card- board barrel with a they over the plastic bag top. Although shook the barrel, did they not search it. Neither officer had a warrant authorizing these entries.

About 10 aunt, o’clock that night, Sergeant to Smith’s Zuniga spoke Mrs. Fechtner, who concern for safety. her niece’s expressed Zuniga went to Smith’s and observed that the apartment was dark apartment and that there addition, was mail in the mailbox. In the officer noticed Smith’s car was not in the or driveway the immediate neighborhood. Because Officer Rivas had however, did to contact attempt Zuniga a note inside the apartment,

left 11:10. left the residence about Zuniga at the residence. anyone Short, a loud Iris another heard neighbor, thump- Also around p.m., and someone stairs. running up on Smith’s front door then noise ing out, in front of standing looked she saw the silhouette of someone When she to Mr. Mrs. she called Lopez, police. the door. After and talking about 11:25. Receiving to the call no Fryslie Tracy responded Officers knock, tried and found it unlocked. After they to their the door answer their to enter the the officers entered. apartment, intention announcing in the the officers found what ap- there was no one Although apartment, barrel, felt Fryslie to be a note. Encountering part suicide peared felt soft He the contents then covering pliable. plastic protruded; may he found a body and informed him that have Sergeant Zuniga called barrel, found Smith’s bag they site. inside Cutting open disposal their search left to obtain a immediately The officers ceased and body. search warrant. obtained, the next (February 28th),

The warrant was executed morning uncovered, A body was removed. search of the apartment among and with bottles and a note a things, prescription drug pad other several empty Dr. While most of bore the note that “Dear Hamilton.” the bottles began, name, addition, name. In found a victim’s one bore defendant’s police in the toolbox garage. on the

An revealed the victim had been struck three times head autopsy instrument, a The victim received one direct with a blunt hammer. probably Any and two blows. of the blows would have caused instant glancing blow or unconsciousness. the victim had no other broken bones lacera- Although tions, absence of defensive wounds such as bruises could not or presence of the body. be determined because of the advanced state decomposition in in his Dr. of the testified Failing, pathologist charge autopsy, the victim rather than the cerebral contusions. died opinion, asphyxia Dr. Failing Because of the condition of the could not body, pinpoint 14 days death but it was to earlier. probably time of opined restaurant, in he fled Police located defendant that a but when morning search, him a arrived. After a brief found under truck police hiding police custody. him and took into

Defendant his Miranda Arizona (Miranda waived rights 86 S.Ct. 10 A.L.R.3d and 974]) agreed U.S. L.Ed.2d Officer that he Smith with Tonello. Defendant stated lived with and speak February 26th with her their that he home. He affirmed spent night however, admitted, that they that Smith alive that He eventually was night. that they and that he killed her. He had been argued explained drinking a book at him and he hit heavily that and She threw night began argue.1 table, her head. She have hit her on a but he was not may twice head sure. he her stated that mentally hitting He admitted was aware he was but eventually began he was in a He realized she dead. He a rage. writing was Hamilton, letter to his Dr. and then took several and pills psychotherapist, lay gas down beside Smith. He tried to kill himself from the inhaling body, oven. He did not he do with the know what intended to it moving from room room. He he lit fire in the and also stated a fireplace brought Smith’s into body the room to her “warm.” At one he held keep point, Smith’s body eventually body own. He Smith’s blankets wrapped barrel, and and in the it plastic bags it was found placed police. where Smith, ex-husband, was Leighton victim’s the vic- sorting through tim’s after belongings custody. defendant taken into Although police house, had searched the already Smith when Leighton contacted he police discovered a hammer under a He also lying daybed. many noticed coins, furs, china, victim’s were possessions missing, a including jewelry, television, camera, oven, a microwave stereo. that, cocaine,

There was evidence in order to buy defendant sold the after, before, victim’s property her death. He possibly away bartered her car to Albert and Americo Perez for a of gram cocaine a quarter plus promise of in more cocaine the future. The Perez brothers sold the car in Mexico but to it agreed retrieve and in testify defendant against exchange for a grant of immunity. Barney Sandra testified that she defendant helped cash occasions, some of checks; the victim’s on at least two she him saw write the victim’s name on a check. they She also testified that used the money from the checks to buy drugs and alcohol and that defendant tried to sell the victim’s jewelry. Jackie Dennis testified that gave defendant her some women’s clothes jewelry and sell asked if she anyone and knew who wanted to some buy dishes. addition,

In defendant’s two testified and related vari- psychotherapists ous discussion, inculpatory statements defendant made therapy. (See post, 549 et seq.) Defendant did not an afiirmative defense. present Penalty Phase

The prosecution’s case at the of penalty the trial phase consisted of evidence of felony defendant’s In prior convictions. June 61-year-old alcohol, There was that regularly evidence both defendant and the victim marijua abused na, and cocaine. defendant, her on neighbor, doorbell and found Jane B. answered her asked use his wife and he had been with fighting He indicated doorstep. let him in but made a up him it was too late to Jane She told telephone. B.’s wife, it thinking for his would cosmetics to to defendant give package him, door to hand the she the opened package cheer her When up. knife, and, forcibly raped armed with a butcher way forced his defendant throat, he crime, the her told her held knife to her. the defendant During small, noise, any if made and made several kill her she screamed or would crime, her if she on her neck. Defendant told reported shallow cuts her house. kill her. He also threatened to firebomb he return and would radio, left, money, a and a After Jane B. discovered some small defendant trial that at defendant’s subsequent rape camera were She testified missing. bloody. left her area extremely vaginal was and it painful ordeal B. admitted he and robbed Jane raped After his arrest for defendant rape, defend- cuts on neck. making During interrogation, but denied her solicited a homosexu- ant Robert Pierce after the latter killing also admitted to kick him al act him. said he kicked Pierce continued from Defendant scene, after down. Before he took Pierce’s watch. leaving he fell Barbara Santa February police evidence showed that prosecution’s Pierce, Al- doorway. in a body university lying found professor, accidental, an revealed they initially autopsy believed the death though De- theory. with the accidental death injuries facial and other inconsistent murder and eventually degree rape. fendant to second guilty pleaded evidence, evidence of de- In introduced prosecution addition this receiving convictions for stolen burglary property. fendant’s prior Dr. defendant called Judith phase, the defense portion penalty treat- voluntarily sought She testified that defendant Hamilton to stand. restlessness, headaches, of ner- feelings ment her and from because victim He had a fear of his hurting girlfriend, vousness around also people. had drugs Linda Smith. he abused several reported past, Defendant addition, cocaine, he marijuana, and alcohol. including amphetamines, beat he his father and that his grandfather, grandfather told her that hated wood, sexually him and that he was abused with branches and scraps he Defendant also revealed years when he was old. mother’s friend occasions, the most recent being had suicide on three different attempted Dr. as from month earlier. Hamilton defendant suffering atypical diagnosed She substance abuse. could drug control disorder and or impulse multiple she with defendant whether could not determine on the basis of her sessions as rule disorder organic personality possi- out paranoid schizophrenia ble diagnoses. Wharton, sister, Ann his childhood. The

Claudia defendant’s described defendant, moved to his maternal farm family, grandmother’s including Hammond, Louisiana, His mother after defendant’s parents separated. Lee, as domestic and received benefits. David defendant’s worked welfare six-foot, five-inch, was a man known stepgrandfather, three-hundred-pound as Daddy” and was the father on the farm. Lee did not like “Big figure defendant. Lee or an would beat defendant with a leather oak branch strap whenever defendant him. Defendant carried a heavier share of displeased the chores than did the other mother often children. Defendant’s quarreled Lee; he with when became Lee would sometimes turn off the angry, family’s water or refuse them to burn in the wood winter. Defendant’s mother had a drinking problem years. defendant’s childhood When defendant was during 16, he left home and entered the Job Corps.

Claudia also testified that defendant was a man after he was changed released from his first term in He was anxious crowds and had prison. headaches. She stated that defendant told her he did not kill Pierce or rape B. Jane He also told her his wife had a B. Jane was miscarriage night raped. Wharton, mother,

Pearl defendant’s testified that she left home at age father, when Lee tried to molest her. She married defendant’s George Wharton, when she was 22 years old and their marriage lasted about years. Defendant’s father drank and occasionally abused her. physically farm, After the family moved back her mother’s Lee mistreated defend- ant, occasion, him beating with oak switches. On one she argued with Lee after he one whipped of her an daughters with extension cord. When Lee broomstick, struck defendant’s mother awith defendant a stick picked up to defend her. Lee ran produced gun away. defendant Wharton, sisters,

Linda another of defendant’s essentially corroborated Claudia and Pearl Wharton’s of defendant’s description years. childhood She that Lee speculated defendant because he punished looked like his father, a occasion, man Lee disliked. She also recalled on one when old, sack, defendant was 12 or 13 years Lee him in a placed burlap dangled it from a tree branch with a and then set a rope, fire smoldering, smoky under the sack. Defendant was left in the sack for hours. Patterson,

Dr. Donald examined a psychiatrist, defendant at the request of the defense. He concluded defendant suffered from a disor- personality der, disorder, a substance abuse and possibly paranoid schizophrenia. addition, crime, he noted that at the time of the defendant was under severe i.e., stress which may have led to a brief reactive psychosis, a brief interrup- tion of contact reality with because of some significant event or stress. This

546 is, slaying, following unusual behavior defendant’s would explain her a fire to keep room and building from room to body the victim’s moving (Dr. disorder” “atypical impulse stated that although Patterson “warm.” less comfortable with he was was a diagnosis) possibility, Hamilton’s diagnosis. that, defendant was in his opinion, stating

Dr. Patterson concluded at the time disturbance extreme mental or emotional under the influence of had he dysfunctional relationship the crime because of the he committed addition, reasonably defendant believed that victim. In Patterson with the acted and that he for his conduct moral justification believed there was of another per- domination or under the substantial under extreme duress de- showing in of evidence light latter conclusions son. He reached these in have killed may response hallucinations and auditory suffered fendant inside his head. “voices” he heard

Discussion Phase

Guilt Deliberation Premeditation and Sufficiency 1. Evidence of evidence of premeditation Defendant contends there is insufficient Although first murder verdict. jury’s degree and deliberation support he described circumstances of the crime—as heavily relies on the defendant there was insufficient to Officer Tonello—to conclude them his confession from a rational there was other evidence which evidence of premeditation, kill before concluded defendant premeditated trier of fact could have but “we admittedly overwhelming, evidence was This latter ing. premedi a reasonable doubt that defendant beyond not be convinced need ‘ ratio “any on is whether The relevant inquiry appeal tated murder[]. ’ v. (1988) Lucero (People fact” could have been so persuaded.” nal trier of 185, v. 1006, 1342], People 750 P.2d quoting Cal.Rptr. Cal.3d [245 738, 606 P.2d Cal.Rptr. Johnson (1980) [162 307, 318-319 443 U.S. Virginia and Jackson 1255], (1979) A.L.R.4th 560, 573, italics in 2781], original.) 99 S.Ct. L.Ed.2d cases, first set forth People on the test rely As we tripartite past Accord 447 P.2d 70 Cal.2d (1968) v. Anderson 942]. defendant’s (1) planning there was evidence of determine whether ingly, we kill, homicide; as from his gleaned to the his motive activity prior victim; and the manner of killing, conduct with the or prior relationship had a preconceived design be inferred that defendant may from which first murder when degree typically kill. court sustains verdicts of “[T]his extremely at least there is evidence of all three otherwise types requires of in with either or (2) conjunction (1) evidence of or evidence strong (1) (Id. 27.) (3).” p. no evidence defendant activity, there was asserting planning confession, to his which tends to of a paint picture killing during

points frustration, and uncontrolled As explosion anger, rage. spontaneous summation, however, in his the fact that the argued closing prosecutor hammer—the murder found in the toolbox likely sug weapon—was may nearby, defendant have removed it ahead of time and it gests placed to be in a v. Martinez “planning rage.” (See People Cal.App.3d 364, 372 This 265].) by some Cal.Rptr. possibility given support [238 the testimony of defendant’s that he was them be psychotherapists seeing cause he was afraid he strike would Smith.

Another scenario raised possible prosecutor closing argument that defendant and Smith he became quarreled, angry, went garage it, obtain the hammer with intent to kill Smith with came back and struck her as she was evidence slept. (There she was not when standing As the struck.) prosecutor jury, informed the can properly “premeditation occur in a very 333, short of time.” v. period Bloyd 43 Cal.3d (People 729 P.2d Cal.Rptr. 802]; 26 Cal.3d People Velasquez (1980) version, 606 P.2d Under 341].) this defendant’s act of the hammer retrieving would constitute activity. planning

Either version of the actual crime is indicative of activity and planning reasonably inferable from the evidence. both are Although inconsistent with the circumstances Tonello, of the crime as related defendant to Officer the jury statements, was entitled to disbelieve defendant’s self-serving espe- cially light the fact that he was less than forthcoming during interview, critical at one sarcastically point directing Tonello to “do some for, detective work. That’s what you’re there you know.” Defendant was also somewhat inconsistent at one description killing, point he saying have might Smith in strangled addition to her on the striking head, but that circumstances, he was not sure. Under these deci- jury’s sion to disbelieve his story was not unreasonable. also prosecutor identified a motive for the plausible (See slaying.

Lucero, Cal.3d at [“plausible” motive The evi- found].) dence clearly showed that defendant sold some of Smith’s after belongings her death and there was evidence from jury which the could have reason- ably inferred that defendant was also from Smith stealing her demise. before death, Sometime before Smith’s defendant told his psychotherapist their house was apparently burglarized and some of Smith’s coins and remaining and Smith the valuables missing. placed were Defendant jewelry car, the bank but the car in to take them to for intending safekeeping, the however, Later, and items lost. Smith remaining also the burglarized was taken the clear allegedly burglaries. found in the house property himself, to intending took the sell property defendant implication it, the loss on a bogus burglary. and blamed before Shortly with other evidence. her

This was consistent possibility Smith, defendant, murder, rela- (no Linda and one Lewis Smith apparent Linda Defendant and Lewis Smith took Smith’s together. had dinner tion) car and her car as stolen to some She called the buy liquor. police reported more than minutes. The invited gone prosecutor when defendant was for thefts of her the to conclude that she must have known about the jury prior her she was to conclude defendant had stolen car. because so property quick by only may that these are no means the ones that We admit inferences the be from the evidence and that evidence of and premeditation drawn Nevertheless, the is not the inferences strong. urged prose- deliberation are from the they reasonably cutor were ones in that deducible permissible (Johnson, 576.) 26 Cal.3d at the evidence in a supra, p. Viewing evidence. to reasonable most favorable the and all facts light People presuming the conclude a “rational trier of fact” could have of we support judgment, and activity, been that there was evidence persuaded planning was not of a Although killing preconceived motive. manner of indicative kill blows to to design (Lucero, supra, p. [“multiple very] skull from a blunt instrument mur- suggestive premeditated [is courts verdicts of first murder where there is der”]), degree sustain appellate in conjunction activity. evidence of motive with planning (Anderson, We there evidence 27.) Cal.2d at thus conclude was sufficient verdict that defendant and deliberated the jury’s premeditated support killing.

2. Privilege The Psychotherapist-patient a host on that the trial

Defendant raises of issues centered his assertion Drs. Hutcheson and court’s decision examine permit prosecutor Hamilton, Evidence Code defendant’s two violated sec- psychotherapists, tion That section privilege. provides psychotherapist-patient disclosure, “the pertinent subject voluntary patient, to waiver part disclose, or not a has a to refuse to party, prevent whether privilege disclosing, another from confidential communication between patient by: if the is claimed The holder of (a) psychotherapist privilege [fl] is somewhat Because factual this issue com- privilege.” background it we discuss in some detail. plicated, Background

a. murder, 27, 1986, i.e., before more than two weeks January On four ses- He had health counselling. mental voluntarily sought defendant by also examined Hamilton, intern; he was Dr. postdoctoral sions with one full session. Hutcheson, and for briefly again once Dr. a psychiatrist, in these he made as well as comments history on Based defendant’s Linda Smith that sessions, Dr. Hamilton warned Dr. Hutcheson and both Regents University was in danger. (See she California of Tarasoff hereaf 1166], 83 A.L.R.3d 551 P.2d 17 Cal.3d 425 trial, for a and hearing the moved ter Prior to Tarasoff.) prosecutor some testify allegedly privi doctors could about determination that both information, Both namely warning. psychotherapists, the leged Tarasoff counsel, the motion. Defendant county joined op by People’s represented motion, privilege. the on the relying psychotherapist-patient posed testified, the trial court After an in in which both doctors camera hearing conver- could into the substance of the ruled that the prosecution “inquire Smith,” the Linda and that conversations between doctors sations with discoverable, the victim were as were the professional impressions latter were ruling that the Included the diagnosis warning. prompted defendant, statements made the trial court excluded although specifically Tara- statements made in that did not “any trigger therapy] [defendant warning.” soff trial, Dr. met in cham

Shortly before Hutcheson testified at the parties bers to The testimony.2 discuss doctor’s proposed prosecutor proposed to ask Dr. comments homicidal concerning Hutcheson about defendant’s objected any and whether a was Defendant “to thoughts warning given. Dr. a conversa jury having information before the about Hutcheson going initially tion Linda her to do He relied on something.” with and telling hearsay objection, and relevance for his later Evidence grounds adding No Code section 352 as a third for exclusion. ground After some mention was made of the psychotherapist-patient privilege.3 discussion, objections. additional the trial court overruled defendant’s regarding privilege pretrial applicability psychotherapist-patient The motion McMahon, by Judge original judge. ruling that and the was decided trial Between start of trial, against Judge replaced by and he prejudice defendant filed an affidavit of McMahon Proc., 170.6.) Judge (See parties Dodds. Code Civ. The met in chambers to discuss the § scope testimony, Judge Dr. proposed apparently Hutcheson’s because Dodds was not “particularly Judge ruling familiar” to reaffirm with McMahon’s and wanted the limits on testimony. the witness’s 3Although privilege, defendant did not renew at trial his claim of we decline to find he case, purposes appeal. waived the issue for of this Under circumstances of this pretrial his Dr. Hutcheson about his intention to ask also expressed prosecutor Smith, defense counsel the door opened with arguing his conversation statement, in his jury, opening by informing to such evidence statement, This prosecutor defendant was Smith. provoked claimed* of this The trial court was dubious defendant’s state of mind issue. placed on that actually that until introduced evidence defendant argument, stating however, All not in issue. parties, expressed his state mind was topic, to the stand to inconvenience should he be called concern for witness’s to make an Defense counsel then testimony proposed give piecemeal. his intended line of on cross- offer of camera proof regarding questioning examination. All to this agreed procedure. chambers, counsel stated

After the left the defense judge’s prosecutor that, cross-examination, Dr. Hutcheson had he intended to ask whether on defendant, that and he the doctor diagnosis expected report reached he as a Counsel paranoid schizophrenic-chronic. had defendant diagnosed admitted, issue.” “That’s to Mr. Wharton’s mental condition into going put returned, him, “I’m When the informed satisfied judge prosecutor in issue in this case. I’m so inform- the mental state of the defendant will be you take whatever actions so desire.” you, you may ing 27, 1986, January With the Dr. Hutcheson testified that on jury present, he he with at Dr. Hamilton’s what briefly defendant spoke request minutes, Dr. termed was a session.” After five or ten “semi-emergency tense, anxious, “a vari- Hutcheson determined that defendant was and had him as as ety of He concluded defendant should see soon again symptoms.” Dr. no notes from this brief session and could not Hutcheson had possible. could be as any recall whether defendant made comments that construed threats of violence.

Dr. on 6th. The February Hutcheson saw defendant again psychiatrist hallucinations, they from auditory discovered defendant was suffering stress, the voices were worse under but that defendant could differentiate Dr. stayed away from his Defendant told Hutcheson that he own thoughts. from because he was afraid he use them on himself might and knives guns or else about threats or violence nothing others. Defendant said “potential kill.” or orders to Dr. at that time but re-

Defendant did not cross-examine Hutcheson so later in the trial. served the do right legal theory, testimony therapists specific on a motion to exclude the of the two was advanced evidence,” “particular, body motion was made “at a was directed to a identifiable and the evidentiary appropriate . . . in its judge question time when the trial determine the [could] Morris, Indeed, ante, 152, 949].) P.2d (People context.” case, camera, therapists providing judge ample the trial with context with this testified to rule on the motion. which week, next Dr. Hamilton the discussion with a similar in-chambers After She first saw sessions with defendant. described her therapy she testified and a “fear of that he had 27th. Her notes revealed January on defendant Al- hit Smith. afraid he would current and was girlfriend” hurting [his] had that defendant often Dr. intake narrative states Hamilton’s though murder,” defendant said ... she could not recall what “thoughts defendant never used her those words. She was sure to write prompt “kill” or “murder.” words for that 1986. Her notes February

Dr. Hamilton next saw defendant on De- of his anger.” “feels he is more control losing session state defendant 7th. Dur- February Dr. Hamilton was for fendant’s next with appointment session, Linda comments violence towards regarding this he made no ing 14th, February Dr. Hamilton on Smith. At his fourth and final session with “feels Linda” Dr. Hamilton’s notes that defendant report manipulated notes, From her she but she could not recall defendant’s words. precise her car as recalled that told her that Linda Smith had reported defendant stolen, the time defendant and Lewis Smith took an reference to apparent Dr. Hamilton noted defend- Finally, Linda Smith’s car to some buy liquor. calm, coherent, neatly ant and was appeared groomed. cross-examination, On Dr. that defendant never used Hamilton reiterated Further, the “kill” or “murder.” admitted fear of losing word defendant’s anyone control of his was not directed at in When defend- anger particular. Smith, away ant became he would or hit a On redirect angry walk wall. examination, said, she testified her notes stated that defendant “Sometimes of me. I need to from her and find solitude.” frightened get away [Smith is] Dr. Hamilton said defendant became when intoxicated. aggressive recess,

After a the in chambers that he intended to stated prosecutor Dr. the Hamilton about statements defendant made question regarding only coins and that were taken in a to be later jewelry allegedly burglary, coun- discovered the house Smith. The trial court overruled defense sel’s relevance and Evidence Code section and the objections prosecutor thereafter elicited information from Dr. Hamilton in court. this open Dr. Dr. Hutche- testimony,

At the close of Hamilton’s defendant recalled son for cross-examination established that the witness had diagnosed defendant as a paranoid schizophrenic.

b. Discussion

We Dr. Hamilton Dr. with the fact that both Hutcheson were begin Code, and that 1010), defendant was qualifying psychotherapists (Evid. § defendant established a (id., 1011). psychotherapist- their Because patient § doctors, he in the course of with both statements made patient relationship were, com those confidential professional relationships generally speaking, munications within the of the coming privilege. (Id., scope §§ the term “confidential communication”], [outlining privi [defining his that the Defendant’s revolve around claim lege].) arguments trial court misconstrued the to the scope exception psychotherapist- section 1024 section (hereafter embodied Evidence Code patient privilege if That section “There is no under this article 1024). provides, privilege has cause to believe that the is in such reasonable psychotherapist patient mental or emotional condition as to be to himself or to the dangerous or of another and that disclosure of the communication is person property necessary prevent danger.” threatened however, It that defendant waived the his appears, privilege placing mental state in issue. The Dr. record shows that Hutcheson’s prior Dr. testimony, were concerned about the Hutche- parties possibility discussion, son testimony this delivering piecemeal. During prosecu- tor stated that “The issue is . . . ‘Once the defense generally quote, puts defendant’s mental . . .’ state issue is waived unquote, privilege .... I think that’s you’re what about.” Defense counsel talking replied, Later, “Yes.” defense counsel made an offer of in chambers that he proof Dr. intended to ask Hutcheson he made a whether had defend- diagnosis admitted, ant. Counsel Mr. “That’s Wharton’s mental condi- going put tion in issue.” The trial court this relayed information to prosecutor. Later, before the Dr. jury, defense counsel Hutcheson about his queried of defendant. diagnosis in

Evidence Code section 1016 states that “There is no pertinent part . . . as to a communication relevant to an the privilege concerning issue mental or if emotional condition of the such issue has been tendered patient by: [10 (a) This section seems to the facts of this patient.” applicable and, indeed, counsel, case seems to have been defense who anticipated stated on the record that he understood he was defendant’s mental placing in state issue.

Defendant rely it is unfair to on his offer of and argues proof subsequent cross-examination of Dr. he the Hutcheson conclude waived privilege. He asserts that a closer of the record reveals that his offer of reading proof of the trial “was court’s erroneous the product ruling” permitting prose- Tarasojf cution to about the 17 Cal. inquire warning 3d (supra, 425). he notes that stated that Dr. support, defense counsel takes [Hutcheson] If cross-examination, the witness stand on one of the I’m things going ask him is Mr. whether he made a of Wharton. I diagnosis know that he did he was court that tell the He’s going is. the diagnosis I know what added.) (Italics schizophrenic-chronic.” ... as a paranoid diagnosed (“If word italicized single should interpret insists that we Defendant about to elicit evidence intended . . “counsel meaning [defendant’s] as .”) as a was called only psychotherapist condition and emotional mental if had consistent- the defense which an occurrence by the prosecution, witness in (Italics original.) ly opposed.” his he although placed that to be thus appears

Defendant’s position the trial so issue, doing into unfairly “coerced” in he was mental state to the privilege of the exception on the scope “erroneous ruling” court’s curiae4 raise a plethora and amici in 1024. Defendant embodied section claim, that, misinterpreted the trial court demonstrate that they arguments defendant waived validity of our conclusion 1024. Because the section on the correctness hinges under Evidence Code section the privilege to discuss we proceed of the privilege, trial court’s on the ruling scope below, ruling find the trial court’s because we these As challenges. explained in “erroneous” but was was not of the section exception on scope statute, waiver” defendant’s “coerced correct fact a interpretation untenable. theory is Drs. trial, could that the prosecution question

Prior to the court ruled warning substance of their Hutcheson and Hamilton about both statements, victim, “trig- made therapy, defendant’s of the court’s ruling unquestion- The former warning. portion gered” to third have been revealed correct: once confidential “statements ably . . . are no they in a communication that is not itself privileged persons 50 Cal.3d 619-620 v. Clark (1990) confidential.” longer (People P.2d 127].) CaLRptr. broadly by court section too

Defendant claims that the interpreted all for for all statements involuntarily that the waived ruling privilege justified (made therapy) because some of statements merely purposes this Amici curiae echo of a to the victim. warning disclosure the form if section 1024 permitted prosecution and maintain that even argument confidential communica- to about defendant’s question psychotherapists victim, other communi- to warn the tions defendant made that caused them cations, not made to the were warning, made in but irrelevant therapy statements defend- 1024. Of were by particular importance available section of items discovery in the victim’s concerning purportedly ant made therapy 4 Association, Psychiatric Cali joint from amici curiae California We have received a brief Family Therapists, Chapter and California of National Marriage fornia Association of and Association of Social Workers et al.

554 in stolen a on previous burglary. relied these statements to prosecution bolster its theory that defendant the homicide. premeditated

We agree that the mere fact that some statements are nonprivileged of section 1024 does operation automatically make all of defendant’s confidential communications to his available to the therapists prosecution. is to be psychotherapist-patient liberally construed favor privilege “[T]he 330, of the v. patient.” (Roberts Court 9 Cal.3d 337 Superior [107 309, 415, 508 P.2d In re 2 Cal.Rptr. 309]; (1970) Cal.3d 437 [85 Lifschutz “And, 467 44 Cal.Rptr. P.2d A.L.R.3d even when the balance 1].) disclosure, in favor tips constitutional concerns strict circum require of the scription of the disclosure.” scope (Cutter Brownbridge (1986) 836, 843 Cal.App.3d We have an Cal.Rptr. 545].) to con “obligation strue narrowly any to the exception we psychotherapist-patient privilege: must such an apply only when the case falls exception patient’s squarely within its ambit.” v. Stritzinger 34 Cal.3d (People 431, 668 P.2d 738].) authorities, however, The foregoing no either to provide support defendant or amici curiae because each misconstrue the trial court’s ruling. the court Although about permitted prosecutor inquire “[statements by the defendant himself which to the impressions diagnosis [led] victim,” ultimate conclusion to with the court went on communicat[e] to rule that “[n]ecessarily excluded are any statements did not trigger . Thus, . . warning.” (Italics added.) the court limited expressly appli cation of section 1024 to those confidential communications that “trig their decision to gered” By warn the victim. circumscribing of the scope to the exception trial court acted accordance privilege, with both the intent of the Legislature and this court’s on the prior pronouncements subject. (Stritzinger, 513; re supra, Lifschutz, Cal.3d at p. 435.)

Defendant also contends section should not after the apply victim is dead because the of the is to avert purpose exception danger others, a rendered goal irrelevant after the harm has occurred. Although section 1024 permits to warn a victim of psychotherapist potential danger, and indeed the has a common therapist duty law do so (Tarasoff, supra, 17 Cal.3d defendant 425), argues very section is a limited excep tion to the otherwise strong public policy favoring confidentiality psycho exist, Once therapist-patient relationships. the threat harm ceases to he claims, the reason for the also exception and the interest evaporates favor ing confidentiality becomes Were again paramount. we adopt defendant’s statute, however, of the interpretation a dangerous patient could regain the victim, protection privilege simply killing an certainly absurd

555 1, 756 P.2d v. Morris 46 Cal.3d (1988) result. (People in a manner that would lead to statute should not be interpreted 843] [“a Moreover, ill serve the interest absurd such a rule would results”].)5 “public at an 440), in from violent assault” 17 Cal.3d safety (Tarasoff, supra, p. balanced against interest our has found when Legislature predominant of admitted of the confidential nature statements maintaining importance made in (Ibid.) psychotherapy.

We have “the interest in effective recognized previously public supporting treatment of mental illness and . . . the consequent public importance the confidential character of communica- safeguarding psychotherapeutic 440; tion.” re (Tarasoff, Lifschutz, Cal.3d at In supra, p. supra, 422-423.) “Psychoanalysis and are pp. psychotherapy dependent upon the fullest revelation of the most intimate and details of the embarrassing life .... ... patient’s Unless a is assured that such information patient confidence, can and will be in held utmost he will be reluctant to make the full disclosure . which and treatment . . upon diagnosis (Sen. depends.” com., Judiciary Com. 29B West’s Ann. (1966 Evid. Code ed.) § 621.) In of this light strong public policy favoring confidentiality the psycho- therapeutic defendant claims section 1024 relationship, disclosure permits victim, i.e., of statements made in only to warn a that the therapy potential section is prospective only. To this support defendant notes interpretation, that discusses section 1024 in terms of or averting preventing Tarasoff addition, threatened (See Tarasoff, 17 Cal. danger. 3d at p. 441.) language section itself “disclosure of the communica- permits tion is necessary the threatened prevent (Italics added.) danger.” [if it]

Such phraseology is the fact that that case explainable Tarasoff involved a duty common law to warn the victim therapist’s intended thus, future danger; its was perspective the sense that it prospective Thus, significant Amici curiae find it present section is written in the tense. it states that “the psychotherapist has reasonable patient«... cause to believe that the dan gerous . . . necessary.” and that disclosure (Italics added.) of the communication is From this, argue amici curiae permits that section 1024 revelation of confidential communications only if patient dangerous proceeding “at the time of the at which disclosure is to oc cur.” Such a interpretation inevitably literal example, would lead to absurd results. For un der amici interpretation, therapist testify curiae’s could never patient his or her presently dangerous person following (1) to another in the patient circumstances: where the trial, custody (2) was in potential at the time of where victim had moved patient and the lived, currently did not know where potential the victim where the victim lived in another here, country, state or or as where the victim had been killed the time of trial. significance particular wording simply of section 1024 is this: that at the time of warning, therapist presently patient must believe his or her is dangerous. From that forward, point provides, section 1024 “There . . privilege. is no .” 556 disclosure of confidential

required information the harm occurred. before did not concern a situation where the harm had already occurred Tarasoff and thus had no occasion to consider the issue. Cases a retroac- addressing statute, i.e., occurred, tive of the application after the threatened harm has have uniformly held section 1024 applicable. 134 Gomez 874

People (1982) 155], is illus- Cal.App.3d [185 case, Herrera, lover, trative. In that the defendant killed his ex-wife’s then sought to invoke the at trial to psychotherapist-patient privilege pre- vent two student interns from death threats he revealing against made Herrera. Both interns had revealed the threats to authorities. appropriate On appeal, defendant claimed that 1024 section there although provided threats, was “no for such death “the privilege” communications became trial, because privileged time of the victim was dead and ‘disclosure’ was no . . longer ‘necessary to . prevent danger.’” (134 at Cal.App.3d contention, p. 881.) Court of Appeal rejected that if the reasoning preliminary facts 1024 supporting of section existed to the application prior case, injury (or death), there was “no simply privilege.”6 Gomez, 134 supra, 3d relied on the Cal.App. Mavroudis reasoning v. Superior Court 102 In Mav- Cal.App.3d Cal.Rptr. 724], roudis, the son plaintiffs’ Robert was treated by defendant for hospital various mental disorders. Plaintiffs filed a lawsuit based on Tarasoff, supra, 17 Cal. hammer, 3d after Robert attacked them with a multi- inflicting lawsuit, In ple physical injuries. connection with the dis- plaintiffs sought covery of defendant’s records. After the psychiatric trial court denied plain- records, tiffs’ motion to compel production they a writ of man- sought date, inter alia that section 1024 claiming The Court of applicable. that “A Appeal recognized literal reading Evidence Code section 1024 would limit its to a provisions prospective and that “Both the application” of the statute language and the Law Revision Commission comment speak in terms of ‘threatened (Mavroudis, danger.’” at Cal.App.3d p. 603.) The court nevertheless found section 1024 and reversed applicable the denial of the motion to “If discovery: compel facts preliminary upon which Evidence Code section 1024 rests were at a time to the present prior of, injury section 1024 complained any from prevents privilege attaching and the psychiatric records are subject discovery the subsequent pro- ceeding.” (102 Cal.App.3d 604.)

Defendant cites Scull v. Court Superior Cal.App.3d CaLRptr. (hereafter which he Scull), argues his assertion that supports 24] dictum, argues Defendant the discussion in Gomez of claiming opinion this issue was privilege earlier concluded the apply did not because the qualified student interns were not therapists however, under reading Evidence Code section 1010. A opinion, close re veals that the court relied on both rationales as holdings. alternate Scull, has occurred. the threatened harm 1024 cannot after apply

section of a minor patient. with the sexual molestation was charged a psychiatrist involv- the records discovery attorney sought psychiatrist’s The district accused had whether the in an to discover attempt his former ing patients addition, the sessions. treatment during molested other patients past likely he a repeat a was that if the accused was argued pedophile, prosecutor offender, minor of his previous patients and that disclosure of the names harm to other patients. evidence and avert would could lead to inculpatory privi- Over the based on the objections psychotherapist-patient defendant’s motion, but attorney’s discovery the district the trial court lege, granted could in which the former patients strict limitations on the manner placed be contacted. reversed, ruling a writ of mandate and

The Court of let issue Appeal court in motion. The discovery appellate trial court erred granting evi- “the use of the balanced the interests and found competing proffered to overcome the patients’ dence to be insufficient sought prosecution (Scull, 206 at confidentiality.” Cal.App.3d p. 792.) right supra, in that “there is nothing At one court point, appellate opined any record to is still of his former seeing patients. suggest petitioner Hence, the are of had taken injuries already which complained place occur injury likely there was no evidence before the trial court that in the future.” 206 at this (Scull, p. 793.) Although supra, Cal.App.3d 1024, a retroactive of section two factors passage might suggest application First, section convince us otherwise. the Scull fails to mention opinion even instead, 1024; merely it considered a to the general exception psychothera- on due pist-patient privilege process grounds.

Second, in section 1024 does not to the factual situation apply posed Scull, a case Section 1024 ap- involving potentially dangerous therapist. only has a is in such mental or emo- plies when therapist “patient [that] tional condition as to be to himself or to the or dangerous person property fact another.” The Scull court this (Italics added.) impliedly recognized when, 425, 17 Cal.3d re- rejecting Tarasoff, supra, suggestion reasoned, names, involved disclosure of the it quired patient “[Tarasoff] discovery which that a concerning dangerous patients. policy requires doctor warn of the order to dangerous proclivities patients prevent harm to are others is not where the who to be implicated persons sought identified are (Scull, not sources of to the danger public.” supra, Cal.App.3d original italics.) Scull,

We conclude does not supra, defend- Cal.App.3d support ant’s contention that section 1024 is after the threatened harm inapplicable occurred, Gomez, has and instead find the reasoning supra, 874, Mavroudis, more Cal.App.3d persua- Cal.App.3d sive. Because defendant made comments within the rela- psychotherapeutic conclude he a threat to reasonably which led his tionship therapists posed victim, comments to section 1024. such were not privileged pursuant Moreover, because the facts of section justifying preliminary application to the realization of the were only existed threatened prior danger, victim, but de- free to communicate such statements to the therapists ruled correctly fendant’s statements were not and the trial court privileged that those statements admissible at trial. evidence concerning 1024 contrary

Defendant maintains this of section is to interpretation those in from seeking because it will need of public policy discourage help mental intimate revelations in health their and counseling, fearing personal Moreover, be revealed to others. he claims those who choose to will therapy seek be in a for so. We considered will worse done help position having 425, similar concerns in 17 “that such Tarasoff, Cal.3d and found (Id. 440, Moreover, are fn. as entirely 12.) at predictions speculative.” p. case, Justice Tobriner in that “the favoring explained public policy protec- tion of confidential character of communica- patient-psychotherapist tions must to the extent to which disclosure is essential to avert yield danger to others. The ends where the protective privilege peril begins.” (Id. public “ at We 1024 442.) thus conclude section reflects ‘a clear of p. expression confidentiality the balance between the values legislative policy concerning ” of the and the values of his foreseeable victims.’ patient safety (17 13, Maximov, fn. His & The Patient or Victim: quoting Fleming 1063.) Dilemma Cal.L.Rev. Therapist’s Accordingly, we cannot Dr. our section agree interpretation permitting Hutcheson and Dr. Hamilton to at trial contravenes testify policy. public Instead, such a rule vindicates the careful balance between the Legislature’s need for in the on the one confidentiality psychotherapeutic relationship hand, safety on the other. public concerns Com-

Amici curiae contend the California Law Revision Commission ment Ann. Evid. Code (hereafter Comment) section (Deering’s contrary of that statute. (1986 ed.) p. 213) compels interpretation § The Comment states: “This section a narrower to the provides exception than psychotherapist-patient privilege comparable exceptions provided Section 982 for confidential marital commu- (privilege [Evidence Code] nications) Section (physician-patient privilege). [Evidence Code] this inhibit the between Although exception might patient relationship extent, and his ato limited it is essential that psychotherapist appropriate action be taken if the becomes convinced the course psychotherapist during and the patient others himself or menace to is a that the patient treatment necessary make the disclosure the psychotherapist to permit refuses added.) (Italics danger.” the threatened prevent Comment, we in the that, on the language based curiae first argue Amici other excep- to the 1024 so that it is “comparable” section should interpret exceptions and 1004 delineate Code sections listed. Evidence tions “in a proceeding respectively, privileges, the marital and physician-patient him or place or otherwise or either spouse] patient to commit [the men- his alleged because of both, of another under the control or property, the holder benefit Both of these exceptions condition.” tal or physical claim, we curiae amici to these exceptions, To be “comparable” privilege. manner, i.e., only it should 1024 in the same section should interpret to be protect- of the persons for the benefit “in conducted apply proceedings ed the section.” meaning inconsistent with plain a constricted interpretation

Such of In in terms “prevention” 1024 as the Comment. speaking section as well . (italics himself . . another” or the person a threatened “to danger of of an for only exception intended not as clearly section 1024 is added), third as well. person but for an endangered benefit of a troubled patient, Moreover, inhibit” exception “might the Comment’s that the recognition that invocation clearly anticipates the psychotherapeutic relationship benefit. would not inure to the patient’s exception 1024 is that section Comment’s statement Amici curiae next contend the and 1004 means Code sections 982 “a narrower than Evidence exception” in “only designed 1024 proceedings section should be interpreted apply of or property harm to the or to the person potential patient prevent limit however, how to that it knows The has shown Legislature, another.” ato privilege of an to the psychotherapist-patient application exception Code, in 1023 privilege pro Evid. (See certain of type proceeding. §§ [no in 1025 sanity], privilege criminal defendant’s to determine ceeding [no We thus can to establish by competence].) proceeding brought patient it did not express intended the same effect when not assume the Legislature 196 (1987) Cal.App.3d in 1024. Stickel v. Harris ly (See so section provide 117 575, Court v. 88]; Fogarty Superior 591 Cal.Rptr. [242 316, 320 Cal.Rptr. 594],)7 Cal.App.3d 594, Court, by Cal.App.3d relied on recognize Superior supra, that v. 7We Mavroudis curiae, “apparently. designed therapist . . to enable the states that section 1024 was amici testify he proceedings proceedings and to in those when determines initiate commitment 603; may (102 Cal.App.3d People see also present danger to himself or others.” patient 832, 658, opn. v. Memro 38 Cal.3d P.2d 446] [dis. Instead, Grodin, J.].) in We do not read this dictum such a limited fashion. we conclude that 1014, in psychotherapist-patient Evidence Code section privilege as 1024, well as the in section are both dangerous-patient exception of part division of the Evidence Code. Code Evidence section 910 states that “the of division all provisions this The term apply proceedings.” “proceed action, is ings” “any defined in as pertinent part hearing, investigation [or] which, law, ... can testimony be to be pursuant compelled given.” Code, (Evid. 901.) of curiae light these amici provisions, argue § because the 17 Cal.3d was not in a warning (supra, 425) given Tarasoff as defined in Code “proceeding” Evidence section section 1024 cannot trial, however, apply. Defendant’s as defined Evidence proceeding Code section so clearly section 1024 there. applied Amici argue curiae also that the out-of-court disclosure confidential information to victim did not “waive” the for privilege purposes however, Clark, defendant’s trial. As we explained, People Cal.3d at “The page is not whether the question psychotherapist-pa tient has been . . waived . but whether privilege privilege may be claimed at all once communication is no longer confidential.” Because confidential communications were disclosed to a here third victim party, Smith, such statements lost their confidential were status and no longer privileged. (Ibid.)

Both defendant and amici curiae argue section application 1024 does not to remove the for operate psychotherapist-patient privilege communications disclosed. In this defendant making argument, misper section, ceives the of nature section 1024. that a Under if certain factual if predicate (i.e., exists the believes the is a therapist to patient danger another and is necessary disclosure to the the prevent statute does danger), not provide “waived”; that the is it privilege merely that is provides “[t]here no privilege.”

Thus, of 1024 operation keyed voluntary section is not to disclosure and the of as is concept waiver Evidence Code section provides which for waiver an uncoerced the upon disclosure holder of the The fact privilege. that the two therapists warned the victim is not the reason why some of rather, defendant’s trial; confidential were at communications admissible it although 1024permits testify therapist (provided section a in proceedings to commitment the statutory are prerequisites satisfied), application of section pro- 1024 is not limited to such ceedings. evidentiary This result follows from the fact that privileges expressly some are excepted Code, applying from proceedings. (See in criminal [physician-patient Evid. 998 privilege §§ apply does proceedings], in criminal privilege ap- does not [marital-communications ply in proceedings].) certain criminal the psychotherapist-patient privilege Because is not so limited, Legislature we can deduce that the privilege apply intended that in pro- to criminal ceedings. We thus conclude that section 1024 is not proceedings. limited to commitment this case that brings factual predicate of the specified the existence was 1024. ambit of section within in the confidentiality psycho- of the paramount importance

Recognizing 425, that Cal.3d in Tarasoff, we stated relationship, therapeutic a he not disclose to his obligations patient require “the therapist’s others, to avert necessary danger unless such disclosure is confidence that would discreetly, preserve a fashion even then that he do so with the prevention the fullest extent compatible of his patient privacy (Id. that our inter- argue Amici curiae 441.) the threatened danger.” admonition because effectively being nullifies this of section pretation antithesis of a “discreet” one’s is the testify against compelled patient context, however, read in Tarasoff, from disclosure. quoted language law common therapist’s to the balance between clearly spoke proper and the not to the duty applica- to the endangered person patient’s privacy, Moreover, 1024. of section we adopt tion of section interpretation is consistent with today to that extent which preserves patient’s privacy as it revelation of of that inasmuch purpose provision prohibits communications, did not trigger confidential revealed which therapy, to the victim. warning

Moreover, amici curiae the effect of a warning (supra, exaggerate Tarasoff realization of 425). every inevitably Not followed warning Thus, the threat. cannot act of the victim very warning we “the agree mean commu- would could be to reveal therapist compelled patient’s nications in any and all thereafter.” We assume that public proceedings cases, if many any not most a discreet will avoid warning help potential to the necessity victim and thus obviate the danger having subsequent testify. at which the could be public proceeding therapist compelled addition, every we that not statement a makes in thera- reemphasize patient ante, can be revealed because a As py simply warning given. explained, those only communications that or caused the fall with triggered warning 1024. section scope 1024, As an alternative to our of section both defendant interpretation and amici curiae that section to we propose interpret permit therapists warn victims in order to avert any “but to forbid potential potential danger, other use of such We disclosures.” that this restrictive view disagree 1024 section is consistent with the intent. we Legislature’s Although recog any nize “our to construe to the obligation narrowly psychothera exception 34 Cal. that (Stritzinger, 513), 3d pist-patient privilege” obliga 1024 tion whether the factual of section applies determining predicate has been met. Once a court determines a case falls within the ambit of that section, Moreover, the statute that is no simply provides privilege.” “[t]here 562

once confidential communications are by revealed to a therapist third such party, communications lose their confidential status. 50 (Clark, supra, Cal.3d at We thus pp. 619-620.) conclude the plain meaning language of section 1024 reasonably cannot be read as having far-reaching, pre clusive effect advocated defendant and amici curiae.

Defendant further 1024 argues section because inapplicable his psycho did not therapists any reveal confidential communications to the victim. Even such a revelation assuming arguendo is a prerequisite application trial, section 1024 at a we postdisclosure reject for two rea argument First, sons. defendant failed to object the introduction of testimony of his 1222, on this therapists ground. v. Allen (People 1271; Code, Evid. Cal.Rptr. P.2d 115].) § Second, even we were to overlook the assuming absence of a specific objection on this ground (see Coleman 46 Cal.3d People 759 P.2d it 1260]), that “confidential communi appears cations,” Code, as defined in the Evidence were disclosed to the victim. The record reveals that an in Dr. during chambers Hamilton meeting, recounted 17 Cal.3d she (supra, 425) to victim Smith: warning gave Linda Tarasoff her, “I said to ‘You’re in a very situation. I dangerous you think should get out,’ said, ‘Well, essentially. And she he’s tied me and held a butcher up stomach, me,’ said, knife to my and he’s hit and she ‘If I leave him I’ll be or, lonely,’ ‘he would kill me.’ And that was—so that’s—at which point [fl]

I her I told she thought should get police At which she protection. point me, ‘Well, said to I’ve tried that.’ She didn’t seem to think that would work.”8 Evidence Code section states in pertinent the term part

“ ‘confidential communication between patient means psychotherapist’ information, information including obtained an examination of the pa- tient, transmitted between a and his patient in the course of psychotherapist , and in confidence . . . relationship and includes a made diagnosis and the advice given by the in the psychotherapist course of that rela- clear, As is tionshp.” Dr. Hamilton although did not reiterate for the victim the exact statements defendant made in which her therapy led to warn the victim, Dr. Hamilton revealed “information . . . transmitted between a and his patient within the psychotherapist” We professional relationship. People carry claim defendant fails to providing adequate his burden of an on record appeal supporting Specifically, they his contention. portions contend the of the trial tran script setting sealed, therapists’ forth the warning have precluding been the People’s Tarasoff demonstrates, however, quoted passage examination of them. As the part of the unsealed tri transcript al reveals that confidential communications were disclosed. communica- defendant’s revealed confidential conclude psychotherapists Code, tions, victim. in the Evidence to the as that term is defined 1024 im- of section finally Defendant that a broad argues interpretation than a bare concerns. Other constitutional and due privacy process plicates We mention, however, claim. on his due process defendant does expand v. Blankenship (1989) thus decline to consider it further. (See People 141].) 995-996 Cal.App.3d CaLRptr. claim, be

In to his regard recognize relationship we privacy constitutional tween the and a psychotherapist-patient privilege patient’s Const., I, 1; art. In re 2 Cal.3d at right (Cal. Lifschutz, supra, privacy. § 431-432, Griswold v. Connecticut U.S. pp. citing 510, 514, established, however, L.Ed.2d 85 S.Ct. “It is 1678].) also well absolute, may is not but in the furtherance of right privacy yield at In this 511.) state interests.” compelling (Stritzinger, supra, p. case, the trial court the state’s carefully balanced defendant’s with rights interest in . . . “redress committed its citizens.” seeking wrongs against find in our (Scull, supra, 790.) nothing We Cal.App.3d interpreta tion of section 1024 that is in constitutional derogation right defendant’s to privacy. sum, we conclude that where a warns psychotherapist poten

tial victim to section pursuant that statute permits psychothera reveal, in a pist later trial or both the substance of the proceeding, statements, and the warning patient’s made which caused or therapy, triggered Because the trial mo warning. court’s on defendant’s ruling tion to exclude such statements based on the psychotherapist-patient privi correct, lege was thus defendant’s decision to his mental state in issue place and waive the a tactical to a privilege simply choice made response correct evidentiary by the trial court. We thus his claim that ruling reject his waiver was coerced.

3. Motion Mistrial for stand,

Prior to Americo Perez to the met in calling chambers parties to discuss the of Perez’s him scope immunity to warn not to grant mention defendant’s felony conviction. After Perez had sus- prior noting tained a recent and had some facial the trial instruct- beating injuries, judge ed the “to make prosecutor sure that it’s clear that somehow no implication that Mr. Wharton is in any way, or form involved in retaliation shape any or any suggested retaliation Mr. Perez.” against court, examination of

During prosecutor’s Perez open follow- ing occurred: colloquy case, in on this were

“Q [By you custody you While were prosecutor] in the jail? beaten up Yes,

“A I was. On one more than one occasion? “Q occasion or “A About two occasions.

“Q your Is with mouth now? something wrong right “A I a wired got jaw. this, Wharton;

“Q Whoever did it was not Mr. is that correct? correct, “A No. That’s it Mr. wasn’t Wharton. tell in if I snitch

“Q you your Would us use the snitch or opinion phrase I’m jacket, you do know what about? talking Yes, “A I do. Would

“Q you jury? explain “A my That’s in a situation to somebody gets they—well, where situation I Actually, actually got wasn’t the snitch. Mr. Wharton there word saying out that.”

Defense immediately counsel a sidebar conference and the sought jury was excused. The court out that the witness’s statement was blurted agreed and not to the Defense moved for response counsel prosecutor’s question. a mistrial and the jury consultation with defendant. Because was sought all that the should with an unrelated waiting, agreed prosecutor proceed witness. After her one of the testimony, the court received a note from jurors, “What was and what was not with asking: regard allowed allowed day. Americo Perez’ further action was taken that testimony?” No The matter was the next Defense counsel day. taken chambers up judge renewed his motion for a mistrial. After the trial hearing argument, stated that “the take admonition not to attention jury any pay would certain testimony fairly and would listen to it and be influenced seriously motion, it.” The court “I’m not it ultimately stating: suggesting denied isn’t I serious. don’t think it’s near as serious as counsel con- [defense is] and the court announced: “We received a tending.” jury recalled I yesterday evidentiary note from one of the an jurors concerning question. eventually.” think it will be answered

The court next addressed the matter after a weekend break. With the counsel, consent of defense the court the admonishment: gave following Mr. testimony “Ladies and last week of Americo gentlemen, during Perez, defendant, Mr. Mr. Perez blurted out a statement about the Whar- statement, If you ton. heard the instructed to it. Mr. you’re disregard Wharton had Mr. any by do with that were sustained nothing injuries Americo Perez. You shall take it as a fact that Mr. Wharton had nothing Perez, do the injuries with of Mr. You shall any not draw adverse [fi] inferences Mr. against any Wharton from the fact that witness was injured while in or out of the The direct jail.” examination of Perez then continued.

Significantly, Perez admitted on cross-examination that his were injuries aby caused former named Herbert Lewis. The neighbor dispute apparently centered around Perez’s of a occupancy residence that should have re- mained vacant because of Perez’s failure to rent. Lewis called pay police and Perez conceded he told Lewis “a that he disliked.” Perez couple things testified that when they encountered each other later that Lewis night, him twice punched before fleeing.

Defendant insists the court abused its discretion by denying motion for a mistrial. He emphasizes Perez’s blurted-out assertion that defendant “got word out” (presumably that Perez had testified against him at the preliminary examination and was thus was irrelevant “snitch”) and extremely prejudicial inasmuch as defendant was being very tried for a addition, violent crime. In he claims the information was extremely damag ing the penalty of the trial phase because it jury communicated to the that defendant would be a dangerous if prisoner for life without imprisoned possibility parole.

“A mistrial be should if the court granted is apprised prejudice that it judges incurable admonition by or instruction. Whether a [Citation.] particular incident is incurably its nature a prejudicial speculative matter, and the trial court is vested with considerable discretion on ruling mistrial motions.” v. Haskett (People 640, 640

Cal.Rptr. P.2d 776].) most cases involve Although or prosecutorial juror motion, misconduct as the basis for the a witness’s volunteered state ment can also provide basis for a finding incurable prejudice. (See People Rhinehart 9 Cal. 3d 507 P.2d answer, error, inadvertent if was not sufficiently 642] prejudicial [witness’s to justify mistrial].) claim of in conclude defendant’s these we

Applying principles, First, directly im testimony did not curable lacks merit. Perez’s prejudice he said defendant word beating; merely “got defendant in the plicate out,” that “the the further inference thereby jury draw requiring Second, gave pointed to the the trial court direct injuries. word” led ar testimony. defendant Although admonition the volunteered regarding the inadvertent jury because disregarded the admonishment was gues until admonition did not come Thursday was made on a and the statement mere and most Finally, impor this is following Monday, speculation. any lin testimony Perez’s own later on cross-examination tantly, dispelled in by alleged beating plac doubt about defendant’s gering participation reasons unrelated to neighbor, wholly the blame on his for squarely ing We conclude the court denied defendant’s testimony. properly Perez’s prior motion for a mistrial.9 Alleged

4. Prosecutorial Misconduct miscon committed

Defendant contends prosecutor prejudicial five to matters outside by duct references during closing argument making 57, 594, 108 v. 44 Cal.3d (1987) Cal.Rptr. the record. Miranda (People [241 208, 212-213 1127]; P.2d v. Bolton 23 Cal.3d (1979) 744 People [152 141, this raising 589 P.2d Defendant is from 396].) precluded Cal.Rptr. however, he timely issue on because failed to appeal, object request 108; v. Murtishaw jury People (1981) be admonished. at (Miranda, supra, p. 733, 759, 738, 631 v. 446]; People Cal.3d fn. 21 P.2d Cal.Rptr. 29 [175 1, 1, P.2d Because none 468].) Green 27 Cal.3d 34 609 (1980) Cal.Rptr. [164 have been timely of the comments so serious that a admonition would harm, cure is any objection prosecutor’s argument to inadequate 1047, 1084 v. Harris 47 Cal.3d deemed waived. (People [255 352, Green, 619]; 767 P.2d supra, pp. 34-35.) Cal.Rptr. counsel but two reasons object presents

Defendant concedes trial failed First, timely objection that fact is not he claims why controlling. have a juries would not have cured the harm because generally admonition the People’s for the comments who is regard prosecutor, high 9 reject violated We further claim that of the motion for a mistrial his defendant’s denial Fifth, Sixth, Eighth Amendments federal Constitu rights under the and Fourteenth to the 967, challenge Dudley (7th 1988) 854 F.2d support v. Duckworth Cir. tion. His sole for this 169, Dudley (1989) v. U.S. L.Ed.2d denied sub nomine Duckworth 490 1011 certiorari [104 1655], Appeals in Circuit reversed a state conviction af 109 S.Ct. which the Seventh Court erroneously received court admitted that an immunized witness had anon ter a trial evidence ymous concerning testimony. threatening telephone proposed calls The inference Dud relevant, Assuming Dudley is ley instigated one of the made or the calls. was that defendants distinguishable from case the absence there of a curative present it is due to admonition establishing from himself that the not his or an admission the victim defendant was assailant. Bolton, jury 23 Cal.3d at has p. the trial. representative (See supra, [a too ... for the That argument proves “special regard prosecutor”].) much, however, by the theory, prosecu- because under that no misconduct by cured a trial court’s tor could ever be deemed closing argument of this We as decisions reject contrary admonition. thus point prior Harris, circumstances. supra, court waiver under similar finding (E.g., Miranda, 1084; Cal.3d at 44 Cal.3d at 108.) p.

Second, rule defendant would overcome of the waiver application his trial ineffective assistance of counsel claiming attorney provided 572, v. 33 Cal.3d failing object. Fosselman (People 855, 1144]; 659 P.2d CaLRptr. People Pope (1979) 590 P.2d 2 A.L.R.4th in mind that “a 1].) Keeping mere failure to object to evidence or seldom establishes counsel’s argument 739, v. Ghent 43 Cal.3d incompetence” (People (1987) Cal.Rptr. 82, 739 P.2d 1250]), we examine each instance of misconduct. alleged

During closing argument, addressed defendant’s claim prosecutor that he killed while in a heat of The said: “if it passion. were prosecutor really heat of passion, you what do think would have Ninety- happened? nine times out of a hundred what you if have a heat of happens passion The thing? calls the person Defendant claims the police.” was prosecutor to statistical alluding information not admitted at trial. The jury probably recognized the prosecutor’s comment as in the context of an hyperbole not argument, verifiable statistical information. Even if a reasonable juror have taken might this to mean argument was prosecutor referring evidence—not admitted at trial—of law enforcement experience previous cases, heat of there is passion on the record which indicates that nothing counsel ineffective provided by assistance For failing object. example, counsel not have might wanted to with the highlight jury and point Thus, record, make it wonder if there really was such evidence. on this we cannot conclude counsel was remiss in failing object. remaining incidents which defendant do not even complains

amount to misconduct. “It is settled that a prosecutor is wide latitude given during argument. The may be as as argument vigorous long it amounts to evidence, fair inferences, comment on the which can include reasonable or deductions to be drawn therefrom. It is also clear that counsel [Citations.] evidence, summation during may state matters not in but which are com mon or are illustrations knowledge drawn from common histo experience, ry or literature.” v. Sassounian (People Cal.App.3d 396 [226 “A Cal.Rptr. 880].) prosecutor may his ‘vigorously argue case and is not ’ limited to “Chesterfieldian and he politeness” [citation], may ‘use appro ” priate epithets warranted the evidence.’ by (Fosselman, Cal.3d at 35 Cal.3d 362-363 v. Fields 580; see also People 680].) 673 P.2d treat discussed defendant’s prosecutor Defendant complains . “We have . . about what body by saying of the victim’s laws ment thing. it as a sacred body. regard can do with a Alot you people dead [s/c] into And that he loves he stuffs her a barrel. says There’s someone he Here defendant claims occurred before here. or before.” Although probably comment, this defendant had committed this the prosecutor implied as in the comment be reasonably interpreted same crime cannot past, Instead, making to a murder. prior prosecutor apparently reference event, any for the to a used as a visual aid being jury. reference calendar body a dead was no evidence that defendant had mistreated previously there object cannot faulted for this failing in such a manner. Counsel be statement. later, on behavior

A few minutes commented defendant’s prosecutor Tonello, Officer it was taped interrogation noting surprising during mean, said, “I did nervous. The I’ve that defendant not appear prosecutor It’s kind of a my younger days. into station on occasion been dragged on evi- situation; any this remark was based right?” Although tense it was and could not fleeting tangential dence or common knowledge, objected. have even if we counsel should have assume possibly prejudicial Later, that the victim “was recalled when asked whether prosecutor health,” said, knowl- my ... defendant “To the best of good merely The observed that defendant’s answer was reminiscent edge.” prosecutor no admitted at trial Although “the cases.” there was evidence Watergate cases,” the and fleeting about “the reference was Watergate prosecutor’s history. (Sassounian, as an illustration drawn from clearly permissible criticized for 396.) at Counsel thus cannot be p. Cal.App.3d declining object. issue, that, to the noted because

Returning heat-of-passion prosecutor in the this was unlike a case in defendant was aggressor relationship, victim of abuse kills her “The wife that’s suddenly spouse. which a spousal okay? . . finally after . and does something, had enough being thumped Barbara, Like, if lived in like the Veronica Grove A you shooting. Santa him.” There no evidence at finally victim of abuse and she shot was spousal the Veronica Grove detailing shooting. trial on infor- The mention of Veronica Grove drew prosecutor’s shooting mation neither as evidence at trial nor of common arguably introduced remark, however, The was could fleeting tangential and not knowledge. Thus, defendant even if misconduct. assuming have possibly prejudiced sum, not objected, counsel should have relief is warranted. arguendo assistance, ineffective and his counsel’s failure to did constitute object the issue for failure to to the misconduct waived object alleged prosecutorial appeal. misconduct

Finally, although recognize may we prosecutorial some cases be “so that it infects the trial with such unfairness as egregious to make the conviction a denial of due 47 Cal.3d at (Harris, supra, process” v. 416 U.S. 642-643 citing Donnelly DeChristoforo 431, 436-437, L.Ed.2d 94 S.Ct. such is not the case here. The 1868]), brief, mild, comments were prosecutor’s noninflammatory. 5. Instruction on Provocation

Defendant instruction: “A requested following jury defendant special act in may the heat of time of the as a result of a series passion killing time, of events which occur over a considerable When the period [fl] time, extends for a provocation you must take such of time long into period account in whether there determining was a sufficient for the cooling period to subside. passion The burden is on the to establish prosecution beyond reasonable doubt that the defendant did not act in the heat of passion.” trial court rejected the instruction on the dual that it proposed grounds an incorrect statement of the law and that the correct raised legal points were adequately covered other instructions.

Defendant both reasons challenges for the trial court’s refusal to give his requested instruction. We agree with defendant’s initial point sufficient provocation to reduce murder to need not manslaughter occur instantaneously, but may occur over a of time. period People Berry (1976) 415, 18 Cal.3d 509 556 P.2d Cal.Rptr. 777], is illustrative. In Berry, [134 the defendant’s wife Rachel traveled alone to Israel days three after their returned, When she wedding. man, she announced that she loved another intimate, they had been sexually and she now wanted a divorce. For a of 13 period days, “Rachel continually provoked defendant with sexual incitements, taunts and and him.” alternating acceptance rejection of at (Id. 514.) The defendant p. killed Rachel. v.

Citing Borchers 50 321 People (1958) Cal.2d P.2d 97], we conclud [325 ed that the “two-week of period conduct” provocatory by defendant’s wife was justify sufficient to an instruction on voluntary based manslaughter on heat of Borchers, 18 passion. (Berry, supra, 515; Cal.3d at see also p. 329 victim’s continued “long provocatory conduct”]; People [the v. Bridgehouse 47 Cal.2d 406 (1956) P.2d The [same].) key [303 1018]

570 “ but ‘whether or of the source of provocation the duration element not act, was, or obscured of his so disturbed reason at the time not defendant’s men ordinary render of ... such an extent as would by passion some and rashly or without due deliberation liable act average disposition ” v. reflection, from judgment.’ (People from this rather than and passion 1036, 510, 960], 755 P.2d quot Cal.Rptr. 45 Cal.3d (1988) Rich [248 45, P. 1121], omitted.) italics Cal. Logan (1917) v. ing People from Indeed, defendant’s indistinguishable we that a instruction jury note dictum, District by albeit in the Fourth instruction approved, was proposed 244, 256-257 v. Cal.App.3d of (People Thompkins Court Appeal. & Cal.Rptr. 516].) fn. 7 [240 not duplica- instruction was

Defendant’s second point—that proposed instruc- merit to some of the other instructions—also has as portions tive of heat of and instructions on given passion was jury comprehensive tion. must have occurred one that “the stating killing provocation, including of. . . under and immediate influence while the was the direct slayer acting “the to whether the cooling period of and that as question heat passion,” the standard of the by reason has returned is not measured has elapsed accused, it take an of the is the time would cooling period but the duration have his heat of ordinarily passion or reasonable cooled average person addition, was told jury for his reason to have returned.” not act while under bore the burden defendant did prosecution proving heat of passion. instructions, instruction raised two these defendant’s proposed Despite delivered the standard CALJIC instructions covered points First, could occur over a not informed that jury provocation court. was Second, it not told that if provocation “considerable of time.” period time into take that jury period occurred over such “must” period, discuss, As we cooling-off account the effect determining period. however, addressing an instruction these the trial court’s refusal to deliver reversal. does not legal points require entitled,

A on to instruction request, “pin criminal defendant is 45 Cal.3d theory Wright (1988) his defense. pointing” (People 1126, v. Sears 1049]; 755 P.2d People recently 465 P.2d As ex 190 we Cal.Rptr. 847].) Cal.3d however, to relate facts to a particular instructions that plained, attempt as objectionable (Wright, supra, issue argumentative are legal generally certain facts on identified theories “is best left to and the effect of p. 1137), counsel, witnesses, cross-examination of and testi argument by expert (Id. at mony p. 1143.) where appropriate.” short, Whether the or period provocation long jury should consider all the facts to determine whether “sufficient time ha[d] between the and the fatal blow for elapsed provocation subside passion and reason to return.” v. Wickersham 32 Cal.3d (People 436, 650 By P.2d that the take 311].) directing jury “must” into account the long period provocation the effect of a determining cooling-off period, defendant’s instruction proposed out improperly singled factor, defendant, one favorable to and elevated it over other improperly factors that the jury should also consider. This of the instruction portion refused, was thus objectionable as argumentative and albeit for the properly reason, wrong by the trial court. (Wright, Cal.3d at supra, cases cited.) contrast,

By the court erred to instruct refusing jury, at defendant’s request, that legally adequate provocation could occur over a considerable period time. It was defendant’s theory at trial that no single action on the part victim the fatal provoked blow but that the book-throwing incident was merely culmination of his frustration pent-up and anger emanating from his dysfunctional ongoing with the victim. In relationship words, other his defense theory at trial was that he killed after enduring provocatory conduct by the victim over a of weeks. period

The People there argue was insufficient evidence of this theory to justify the instruction. We disagree; defendant evidence proffered from which rea sonable persons could have concluded there was sufficient provocation reduce Wickersham, murder to manslaughter. (See 32 Cal.3d at supra, p. 324.) Because defendant a requested instruction “pinpoint” on his theory of the case that was neither argumentative nor in the duplicated standard instructions, the trial court erred in to deliver failing it to the jury. (Wright, supra, Cal.3d at p. 1144.)

Although the court erred refusing defendant’s requested instruction (or portion thereof), error does not require reversal. Reversal court, only if required “the cause, ‘after an examination of the entire evidence,’ including is of the ‘opinion’ that it is reasonably probable a result more favorable to would have been reached in the [defendant] absence of the error.” (People Watson 836 [299 P.2d see 243]; also Wright, Cal.3d at 1144-1154 pp. [applying Watson to find the instructional error harmless].)10 10Defendant would apply have us prejudice, different standard of claiming the court’s re fusal to deliver requested his instruction rights guaranteed violated several of the feder al reject Constitution. We this notion. Because precluded no instruction jury finding from adequate provocation time, could occur over a period of jury because the was instructed instruc given comprehensive the was otherwise

Significantly, jury in those instructions nothing of and passion and heat tions on provocation con from resulting jury finding the from adequate provocation precluded Moreover, coun time. defense considerable of occurring period duct over a find such noting to jury closing argument provocation, the in his urged sel “lonely,” “depen the and Smith were (defendant nature of relationship the “alcoholic,” dent,” the the duration of alleged provocation “pathetic”), and weeks of and may days argument that there have been know (“we “verbally and and that Smith became depressed and drinking confusion”), Later, state recounted defendant’s when drunk. counsel argumentative” Tonello, . over “The . . started argument Officer that noting ments to and shriller on on shriller becoming small and and something kept going Indeed, an alarm.” one of the main focal points the voice like sounding and to Dr. Hamilton sides—was defendant’s statements of the trial—for both tension killing, weeks the indicating and Dr. Hutcheson beginning before that felt he was Smith was and defendant building between defendant and Thus, there evidence before of toward Smith. was anger control his losing in no of time and period over jury showing occurring provocation weight. from that evidence its due jury giving struction precluding directly was not instructed Finally, although jury provocation time,” the instructed jury over of was period could occur a “considerable result is murder if it is “the of deliberation and that a first killing degree reflection so have formed upon pre-existing that it must been premeditation, By CALJIC No. 8.20.) finding sudden heat of upon passion.” (See and murder, necessarily found jury was of first guilty degree defendant mind, of and This state killing. defendant deliberated premeditated action, inconsistent with deliberate is manifestly involving planning if that of mind was acted under the heat state having passion—even clearly conduct—and achieved after considerable period provocatory give was not the failure demonstrates defendant prejudiced instruction. requested

6. Deliberations Sequence of to due process

Defendant next contends his constitutional rights constraining a fair an instruction jury compromised by and to trial were passion, no People prove have did not act under a heat that the the burden defendant vio- process due Similarly, Amendment no Fourteenth Amendment Fifth violation occurred. appropriate all lesser included jury properly instructed on lation occurred because the jury instructing does not That court committed harmless error offenses. trial concerns, despite pen- faced the death implicate Eighth the fact that defendant Amendment alty. Finally, perceive we fail a Sixth violation defendant’s one-sentence Amendment unanimity inapposite referring Finding in this context. argument a lack of a instruction error, a standard we to decide whether other than that articulat- no federal have no occasion Watson, apply. should ed in 46 Cal. 3d in the order it most He is thought prudent. freedom to deliberate jury’s in of CALJIC No. mistaken. The was instructed jury largely language 8.75, which states that the should first “determine whether defendant is jury . . . . . If fl|] you unanimously or not of. first murder. guilty guilty degree . . . you that defendant is not of murder the first agree guilty degree, in the will determine whether defendant is or not of murder guilty guilty similar second A directed the degree.” (Italics added.) jury instruction continue to determine it find de- guilt manslaughter defendant’s should fendant not of second murder. guilty degree the trial court informed the

Significantly, jury just delivering prior CALJIC No. 8.75 may that “You deliberate on the and lesser charged wish, however, included offenses in order any you you your must make determinations in the that I (Italics By order now discuss.” deliver- added.) instruction, ing this the trial court this court’s decisions in anticipated v. Kurtzman 46 Cal.3d 322 People 758 P.2d Cal.Rptr. 572], v. Hernandez 47 Cal.3d 315 People 763 P.2d By the jury any it could “deliberate” in order it instructing wished 1289]. order, but must “determine” to a guilt according certain the trial court correctly Hernandez, guided jury. (Kurtzman, 336; at supra, p. 352.) 7. Instruction on Intoxication

To inform the jury about the effect of intoxication and mental illness on crime, defendant’s mental state at the time of the the jury was instructed largely of CALJIC No. 4.21 as language follows: “In the crime offenses, charged Information and the lesser included a neces sary element of the crime is the existence in the mind of the defendant of a state, intent specific or mental If the evidence shows that the defendant [fl] offense, intoxicated or had a mental disorder at the time of the alleged jury should consider his state of intoxication or mental disorder in state, if determining defendant had such intent or mental If specific from [fl] all the evidence you have a reasonable doubt whether defendant was capable state, such forming intent or specific you mental must give the defendant the benefit of that doubt and find that he did not have such intent or specific mental state.” (Italics added.)

The italicized phrase instruction, from the text of the diverges standard which instead states “If from all the you evidence have a reasonable doubt whether the defendant such state, intent specific or mental formed . . .” (Italics Defendant added.) argues this minor variation in the instruc- into the defense of diminished capacity injected now-disapproved

tion intoxication jury instead of (b)), informing subd. (§ proceedings defendant could be taken into consideration whether or mental disorder 28, subd. mental state actually (§ (a)). harbored particular he, rather by him implying Defendant contends this variation prejudiced actually he had the of of did proof showing than the burden People, the instruc reading the mental state. This is not a fair of harbor requisite tion, however, no so the instruction. juror interpret and reasonable would 344, 354, 105 315-316 L.Ed.2d Franklin 471 U.S. (Francis Peo juror]; instructions as would reasonable interpreted S.Ct. [court 1965] 754 P.2d v. Warren ple 218] ,” and, state, “If . . . The the evidence shows clearly instructions [same].) reasonably . . . .” These cannot “If from all the evidence prefatory phrases of instead defendant had the burden but meaning proof, be as interpreted sides. the the evidence from both jury mean should consider presented addition, made clear the should consider jury other instructions whole, the burden of People gener- the instructions as a that the bear proof a on the ally, testimony part supply and that “no lack defendant’s will any him on by support finding against failure of the so as proof People error was and there Finally, slight such essential element.” the instructional We no from either side diminished argument concerning capacity. was the manifestly conclude error was harmless. Malice

8. Instructions malice afore argues defining

Defendant next the instructions contradictory, to kill were and confusing intent thought requiring defining reverse his is based on the fact that in we conviction. His argument malice, there’s the was informed that “Malice is when jury express express kill a No. unlawfully being” manifested an intention human (CALJIC it was “The crime of voluntary manslaughter whereas later told that 8.11), the unlawful of a human without malice when killing being aforethought is Thus, kill.” he was (CALJIC jury there is an intent to No. claims the 8.40.) the to kill but later told synonymous first told malice is with intent to kill. there can be malice without an intent on an narrow and overly simplistic Defendant’s contention premised malice and volun- instructions. definitions of reading jury express tary any were both correct and provided jury potential manslaughter other, al- conflict was obviated instructions. For explanatory example, an kill is jury express was instructed that intent to indicative though malice, malice, the also on does not jury was instructed which implied intent kill. Additional instructions outlined some require specific malice is deemed absent circumstances which specific although person victim, intended to kill the such as heat of sudden passion, quarrel, situations, In such adequate jury was instructed that the provocation. crime is not murder. manslaughter, defendant finds

Although confusion the instructions potential pertain- homicide, he does so ing certain without consider- isolating passages ing instructions as a whole. Significantly, jury was instructed “not to out single any certain sentence or individual or instruction and point ignore the others. You are to consider all of the instructions as a whole and are to regard each in the of all light the others.” Read together, instructions adequately define malice and its to the intent to kill. We relationship thus find no error.

9. Assistance Counsel Ineffective

A criminal defendant is guaranteed to the assistance of right counsel by both the Const., state and federal Constitutions. (U.S. 6th Const., Amend.; I, Cal. art. 15.) “Construed of its light purpose, § entitles right the defendant not to some bare assistance but rather to 171, assistance.” v. Ledesma 43 (People 215 (1987) effective [233 404, 729 Cal.Rptr. 839], P.2d italics in original.) order to demon counsel, strate ineffective assistance of a defendant must first show counsel’s performance was “deficient” because his “representation fell below an ob jective standard of . . . reasonableness under prevailing professional norms.” v. (Strickland 668, Washington 466 U.S. 687-688 [80 674, 693-694, L.Ed.2d 104 S.Ct. 2052]; 23 Pope, Cal.3d at 423- supra, pp. Second, 425.) he must also show prejudice from flowing counsel’s perfor mance or lack thereof. (Strickland, at 691-692 supra, pp. L.Ed.2d at pp. [80 695-696].) Prejudice is that, shown when there is a “reasonable probability but for errors, counsel’s unprofessional the result of the proceeding would have been different. A reasonable is a probability sufficient probability to undermine confidence in the 1247, outcome.” re (In Sixto 48 (1989) Cal.3d 491, Strickland, P.2d 164]; at supra, [259 p. L.Ed.2d at p. 698].)

a. The Warrantless Entries by Police

Defendant first contends trial counsel was constitutionally remiss failing file a motion suppression based on the two warrantless entries into the apartment, Smith/Wharton first Officer Rivas and later by Officers Fryslie and Tracy. Defendant that these argues entries violated his to be right free of unreasonable searches and seizures under the Fourth Amendment and that him counsel’s failure to move to suppress deprived issue, an adjudication of the thereby tainting admission of all the evi- entries, body, victim Smith’s result including discovered as a of the dence Tonello, and elicited from all information defendant’s statements Officer Dr. Hutcheson. Dr. Hamilton and that he is entitled to threshold contention reject

We at the defendant’s him of the inaction merely deprived opportunity relief because counsel’s Rivas, Fryslie Tracy. entry by Officers challenge legality a Fourth Amendment counsel’s failure litigate “Where defense ineffectiveness, is the the defend allegation claim competently principal must that his Fourth Amendment claim meritorious ant also prove that the verdict would have been that there is a reasonable probability in order actual the excluded evidence to demonstrate preju different absent 477 U.S. L.Ed.2d (Kimmelman dice.” Morrison our A rule would be inconsistent with 2574].) contrary S.Ct. claiming cases a defendant requiring numerous pronouncements from counsel’s resulting ineffective of counsel to show prejudice assistance Sixto, In re 217; 43 Cal.3d (Ledesma, supra, acts or omissions. 48 Cal.3d 1257.)11 at p. claim is on his conten

Defendant’s ineffective-assistance premised result of tion that moved to the evidence as a gathered had counsel suppress entries, have the the motion would been” allegedly “surely granted. illegal him, entire defendant comprised Because such evidence case against “fell an necessarily objective claims counsel’s below standard representation . . . v. (Strickland under norms.” professional reasonableness prevailing 668, at Washington, 693-694].) 466 U.S. 687-688 L.Ed.2d pp. supra, [80 Even remiss in to move to failing suppress, counsel was assuming arguendo however, relief because fails we conclude is not defendant appropriate errors, that, a but for counsel’s unprofessional show “reasonable probability Sixto, been re (In the result of the have different.” supra, would proceeding short, 48 Cal.3d at In find the motion would have 1257.) we p. suppression denied. been “ that analysis

We our observation ‘warrantless with begin se in the absence of one dwelling searches a are unreasonable per private 11 695, Farley (1979) Cal.Rptr. v. 851 12 People Cal.App.3d Defendant on 90 relies [153 301], suggested A.L.R.4th Second Court of an ineffectiveness-of- Appeal wherein the District “by obligations im perform counsel claim of counsel’s failure to was shown when reason him, deprived adjudication potentially or meritorious posed on defendant is of an a crucial adjudication necessarily be required It is that the would defense. that defendant establish context, 865, however, original.) Farley (Id. p. in defendant’s at Read in does favor.” italics challenge the ev proposition opportunity not stand for a mere admission of loss of idence, more, showing prima representa without is sufficient to facie of ineffective establish case, any showing perfor “In tion. later cases make clear that addition to counsel’s deficient, prejudice also mance was a criminal defendant must establish before he can obtain supra, (Ledesma, p. 217.) on an 43 Cal.3d at relief ineffective-assistance claim.”

577 ” of a small carefully number of circumscribed v. Cook exceptions.’ (People 67, 605, 22 Cal.3d 583 P.2d v. (1978) 130], Cal-Rptr. quoting People [148 cert, 263, 629, Ramey (1976) Cal.3d 545 P.2d Cal.Rptr. 1333], [127 299, den. sub nom. v. Ramey 429 U.S. 929 L.Ed.2d (1976) [50 California however, S.Ct. One 335].) established to the exception warrant requirement, is when circumstances” “exigent justify exist to a warrantless entry. “ ‘ circumstances” “[E]xigent means an situation emergency swift requiring action to imminent or prevent danger serious or to damage property, forestall the imminent of a or escape destruction of evidence. There suspect is no ready exist, litmus test for whether such determining circumstances and in each case the claim of an situation extraordinary must be measured ” by the facts 1017, known to the officers.’ (Lucero, 44 Cal.3d at supra, v. quoting Ramey, People p. 276.) exception applicable the federal Constitution Mincey v. (see Arizona 437 U.S. 385 L.Ed.2d 98 S.Ct. 2408]) “California courts are full accord with . . . emergency to the exception warrant requirement.” (Tamborino Superior Court 719 P.2d 242].)

We conclude totality of circumstances here an demonstrated emergency situation existed sufficient to justify entry by Fryslie Officers month, and Ybarra. Earlier in the had police been called to the home to Later, Smith/Wharton quell domestic disturbance. on day police discovered victim Smith’s body, Officer Rivas was to the dispatched home to locate Linda Smith and found home. nobody Neighbors reported they had not seen Smith in two mailbox, weeks. There was mail in the she indicating had not been home. Rivas left a note inside the apartment Smith to asking call the He police. locked the door behind him as he left the apartment. Later that evening, police received a second call from Smith’s aunt in San Francisco additional voicing concern for her welfare. Officer Zuniga responded to the scene but did not an entry. Later attempt that same Officer night, Fryslie was to the dispatched scene what he (in charac terized as a Short, “check-the-welfare call”) after Mrs. a neighbor, called “911” after she heard someone banging on Smith’s front door. Fryslie rang the doorbell and knocked on the door. no he Receiving response, tried the doorknob and discovered the door was unlocked. Announcing identity, Fryslie entered the apartment behind his Officer police dog. Ybarra accom panied Fryslie into the residence.

As one leading commentator explains, “Doubtless there an are infinite variety of situations in which entry for the of purpose aid rendering is reasonable. Included are those in which entry made ... to seek an occupant reliably LaFave, as reported missing.” (2 Search and Seizure (2d ed. 1987) 6.6(a), p. 702.) Courts in both California § and other states are in of Lucero, missing 3d at 1016-1018 pp. Cal. accord. (See [evidence v. 39 N.Y.2d 173 Mitchell entry]; People warrantless justified girls 248-249, chambermaid 347 N.E.2d [missing N.Y.S.2d 607] [383 v. Fisher (1984) State hotel; search of hotel rooms permissible]; warrantless house had of [manager apartment 141 Ariz. 227 P.2d 759-764] [686 Com. v. Silo hours; search not for warrantless permissible]; been seen victim had not reported Pa. 406 A.2d 1985) [neighbors 175] hours, did not show reached and by telephone, been for could not be seen a search her home Because work; justified].) suppres- for warrantless of up and Ybarra entry Fryslie warrantless of Officers sion motion based on the circumstances, it follows counsel exigent been denied because of would have make the motion. failing was not ineffective for Ybarra by Fryslie if the was entry Defendant contends that even the victim’s which cutting open plastic an justified emergency, closed container constituted an a body illegal opening was wrapped however, any theory, This assumes justified by emergency. which was terminated. Michi- (See the initial had justified entry which emergency All, 104 S.Ct. The 641].) 464 U.S. 287 L.Ed.2d gan Clifford residence, the victim’s Officer contrary. entering facts are to the Upon and found the suicide note Fryslie noticed the was telephone unplugged circumstances contributed defendant wrote. These additional suspicious When he felt a portion plastic the officer’sbelief that all was not well. barrel, he radioed his that superior that from the he protruded wrapping away site. After body plastic had found a potential disposal cutting the victim’s body, emergency generated wrapping discovering subject ceased (because probable reports missing person left the premises no and the officers longer living), investigating was reports before their search. continuing secure warrant Fourth Amend- fully actions this case with comported officers’ result, a different urges ment defendant us endorse guarantees. Although vacate Fryslie his rule have Officers and Ybarra the premises despite would body. had the victim’s Because they their well-founded found suspicion alive, fault there the victim still we cannot possibility existed further. We thus find trial counsel’s the officers’ decision to investigate failure move to based on the officers cutting open plastic suppress not assistance counsel. did amount ineffective wrapping initial, finally daytime, entry warrantless Officer Defendant claims While it is true there were fewer justified by any Rivas not emergency. was at Rivas entered the we apartment, indications of an the time emergency Rivas not discover any need not resolve this issue because did evidence result, even entry, assuming it was did during entry. his As his improper, evidence, later entry by Fryslie or taint the (2) lead to suppressible Lucero, 44 Cal.3d at 1018 [possibly improper and Ybarra. (Cf. he did not testify trial].) detective of “no because entry by significance” this for to move to on suppress Counsel thus cannot be faulted failing ground.12

b. the Hammer Discovery of should have moved to attorney

Defendant also maintains his trial ex-husband, Smith. the hammer found the victim’s Leighton suppress found, however, hammer Smith’s examination of during Leighton the victim’s his as administrator apartment belongings capacity her estate. Inasmuch as Smith found the hammer in his Leighton capacity citizen, as a unreason Fourth Amendment’s private prohibition against able searches v. and seizures was North inapplicable. (People 509, 629 P.2d Cal.Rptr. 19].)

Defendant to characterize Smith as an attempts Leighton agent citizen” police argues (See rationale is thus “private inapplicable. 628, 633, Dyas Court fn. 2 (1974) Cal.3d Superior 522 P.2d The record does not Oificer Tonello 674].) contention. support Smith, merely told “If you to run across a hammer or Leighton happen comment, let me anything, know.” From this brief we cannot conclude Tonello search or it to take “requested illegal allowed knowingly [an] Indeed, estate, place.” (Ibid.) as administrator of the deceased’s Leighton Smith’s search was not illegal.

10. Prior-murder Circumstance Special defendant in Santa Barbara pleaded guilty County to second murder. This degree murder the sole circumstance in the supplied special case. Defendant raises several present validity to the of this challenges circumstance. special

a. Marsden

Defendant first contends his murder conviction was invalid prior because the court that over that 1975 trial denied his presided improperly motion for substitution of counsel. He claims this violated his misstep federal constitutional to the assistance of counsel. We right reject the argument. 12Because police we find no merit to defendant’s contention entered his residence in viola rights,

tion of his Fourth Amendment question we decline to address the whether the evi discovery dence was admissible under the inevitable doctrine.

580 admit the circumstance only special

We first note that not did defendant case, murder in to second guilty degree the he allegation present pleaded late heavy at this establishing the 1975 matter. He thus bears a burden to the in the 1975 case failed that he entitled to relief because court date is 2 v. (1970) his Marsden (See listen to about counsel. complaints People 156, P.2d Cal.Rptr. 44].) Cal.3d [84 hurdles, however, claim if these twin Even defendant could overcome case, a in the defendant sent lacks merit. The record shows that prior he with his why letter to the trial was judge unhappy detailed explaining reasons that Mur- attorney, among Mr. Included these were Murphy. trial him, in the met with had not several matters only briefly had discussed phy him, story hap- with never received about what case defendant’s complete many and too to sufficient attention to defendant’s give had cases pened, 7, 1975, ac- A held on at which letter was case. was hearing August knowledged.13 Marsden, of

In 2 Cal. we held that the an accused right 3d to have may right the effective assistance of counsel include present thought- counsel and substitute counsel order to discharged appointed. counsel, a trial fully exercise its discretion whether discharge present attorney. is to listen to about his required court a defendant’s complaints (Id. of at denies a motion for substitution 123-124.) who pp. judge “[A] observations, basis courtroom a de- attorneys solely on the of his despite misconduct, exercise fendant’s to relate instances abuses the specific offer of competency attorney.” (Id. of discretion determine 124, italics added.) When the counsel is set forth basis of a defendant’s dissatisfaction with detail, however, letter of a is not hearing required. sufficient full-blown 360].) v. Terrill 298-299 (People Cal.App.3d Cal.Rptr. of that counsel was complaint It the root defendant’s was appears on his due to workload. A copy time case counsel’s spending enough to the defender and assume public defendant’s letter was transmitted we As in defendant was with the results. Avalos pleased People here 689 P.2d it court 121], appears “[t]he and itself that was aware for defendant’s motion satisfied grounds present. The minute “Both The counsel order states: counsel and defendant defendant’s ap Deputy to have Defender advised Court that the defendant wished another Public him, effect represent informed the that his letter to that pointed Court defendant go copy into Public his attention.” This is consis would the files with to the Defender for itself, file Mowrer tent with a on the letter reads: “Placed in court after cc notation which Judge Floyd Although pos judge C. Dodson. it is Public FCD.” trial [the Defender] hearing place, vague that a took the record on the exact nature and extent sible Marsden hearing Murphy. Mr. inquiry into defendant’s dissatisfaction with have com- he might although prepared in fact adequately counsel was Terrill, (Id. 231, supra, citing at his client.” fully with municated defend- can overlook Even we assuming with approval.) Cal.App.3d allega- circumstance admission of the special and his ant’s 1975 guilty plea trial, Marsden error. no we perceive tion in the instant Attorney by Murphy Assistance Rendered b. Ineffective his mo denied erroneously court next claims the trial Defendant in his plea because guilty circumstance allegation tion to strike the special Amendment of his Sixth by tainted a violation was 1975 proceeding was defense counsel Murphy he contends to counsel. right Specifically, question research adequately ineffective for constitutionally failing rights to waive his constitutional whether defendant was competent his and authorities to he notes that his points plead guilty. support, federal cases failed to cite two guilty Murphy motion to withdraw the plea, necessarily to stand trial does not that a holding finding competence and plead guilty. mean a defendant is to waive his competent rights that he was unsuccessfully incompe- defendant below Although argued motion to in the it does not appear tent to plead guilty prior proceeding, an issue strike raised the failure to research issue. we could reach Assuming trial, not raised at it is manifest that defendant fails to demonstrate Murphy did not ineffective. Even were we to find that constitutionally Murphy issue, how this omission research the defendant fails to show adequately concerning him. We have discussed the standards prejudiced previously counsel, that counsel’s ineffective assistance of including requirement v. Washington, act or omission resulted in alleged prejudice. (Strickland Fosselman, 674, 693-694]; 466 U.S. 687-688 L.Ed.2d supra, Here, 33 Cal.3d defendant does not assert that he lacked 584.) merely and we cannot the 1975 competence plead guilty proceeding instability assume from the existence of evidence some mental showing rights. he was therefore to waive his constitutional incompetent fail- only Defendant’s to show from prejudice Murphy’s alleged attempt in that ure to research the issue is his claim that there was evidence prior which, in a case if believed would have resulted verdict jury, this, he he voluntary From reasons was manslaughter. prejudiced plead- misses the mark. Unless defendant can ing guilty. analysis Defendant’s failure show he was not to research the guilty, Murphy’s competent plead issue could not Because no evidence is have resulted prejudice. apparent record, on this reject we the point.

Defendant also claims counsel was for incompetent failing appeal record, however, contrary. murder conviction. The filed a prior Murphy He filed an to sign. an affidavit for defendant and notice of appeal prepared Ultimately the trial record on appeal. for the preparation application effectively 1237.5), former (see cause a certificate of probable court denied § from a plea guilty. further his ability appeal perfect defendant’s ending in his duties attempting adequately performed As is counsel apparent, conviction. the appeal prior Boykin/Tahl

c. the to his 1975 guilty plea, from defendant prior When waivers taking trial, also, stated, the to take the right would have you “At the trial court to, you if but you defense wanted testify your and on own witness stand that, you make take the witness nobody do could could not be compelled elect not So could either yourself. you any testimony against stand or give testify, If elect not to you wish. testify, you or to whichever testify against could not be held that the circumstances would be instructed jury Now, if with you enjoy you proceed will rights these are the you. fl|] do, to second guilty want to you suggest you plead trial. If do what you be murder, you waiving these will rights, be all of you giving up will degree lost, them; you do them, won’t have they you be will be they will gone, “Yes.” that?” Defendant replied, understand him to inform these waivers were inadequate He now complains self- he waiving right against compelled that by guilty pleading that court “failed to inform He states the incrimination. cryptically [him] as such plea itself was very privilege of guilty protected plea testimony.” constituted constitu course, be advised of the defendant must

Of a criminal self-incrimination—he against compelled tional rights—including right U.S. 238 v. Alabama 395 (Boykin (1969) he guilty waives when pleads [23 122 274, Cal.Rptr. re 1 Cal.3d 1709]; (1969) S.Ct. In Tahl L.Ed.2d [81 577, conviction on the he move to strike a may prior 460 P.2d 449]), in not given prior proceeding. that such advisements were ground 707, 687 P.2d Cal.Rptr. v. 36 Cal.3d 909 Sumstine (People [206 however, be cases, need not establish that the advisement Numerous 904].) to the it “effectively so as long formalistic language communicate[s] he is which of the constitutional privileges defendant the essential character inference.” resort to does not message require that waiving, provided 1, 259, 753 P.2d Cal.Rptr. v. Cal.3d Lucky (1988) (People 538, 666 P.2d re 34 Cal.3d 1052]; Ibarra 980].) delivered the trial court the advisement

As is apparent, of the nature of his right against 1975 action informed defendant adequately he was giving up as as the fact that self-incrimination well compelled reject We thus language. complete simple The advisement was right. abbreviated. it was objectionably complaint defendant’s aside must be set murder conviction Defendant also asserts the prior be that he could did not explain the trial in that judge proceeding because Alabama, Boykin Neither if he went to trial. convicted of manslaughter Tahl, such In re supra, requires 395 U.S. nor discussion of that an express detailed advisement. “The law does require even an in the transcript the elements of the offense be contained [or] with counsel.” that the elements have been discussed statement express 49, 61 920].) v. 181 Cal.Rptr. Dolliver (People (1986) Cal.App.3d [225 must be advised of the technical an that an accused Rejecting argument him he enter a valid we may plea, elements of the before charges against said, such and we can “there is no which requires explanation compulsion a discern no reason for the court with such burdening require- persuasive 315, 781, re 324-325 ment.” Ronald E. 19 Cal.3d (In (1977) Cal.Rptr. [137 cases, 562 a court a taking P.2d As in those we see no need for trial 684].) to in an discussion with a defendant plea engage regarding in-depth outcomes should the accused to trial. possible proceed Defendant that because there was some evidence that could have argues murder, a to verdict less than we should the trial court supported require however, inform defendant of that fact. In he cites neither authori- support, for such a rule nor it have a ty any why reasons would procedure policy effect on We thus salutary justice system. of the criminal operation decline to such rule. adopt

d. to Guilty Plead Competence

Defendant next contends his to the 1975 murder must be set plea order, aside because the trial court to did not sua deter sponte, hearing mine whether defendant he con to competent plead guilty. Although a jury cedes found him to stand trial after a contested hearing competent only authority two weeks his he cites federal that a plea, holding before merely than to stand higher degree guilty competence required plead 211; Sieling Eyman trial. v. Cir. 478 F.2d see also (See, e.g., (9th 1973) 1314, 1321, v. 188 fn. 3 Burnett People Cal.App.3d Cal.Rptr. [234 only Because the determined whether [acknowledging Sieling].) jury 67] defendant was able “to understand the nature of the criminal proceedings or to assist in the conduct of a defense in a rational manner” counsel 1367; v. (§ see Hale People generally

114, and not whether he was able “to make a reasoned 769]), P.2d him choice and to understand the among the alternatives presented defendant 215), nature of the of his consequences plea” (Sieling, supra, p. a second should have been held. argues hearing that have and of courts reject join majority We defendant’s argument v. 478 F.2d 211. Sieling Eyman, declined to adopt reasoning 830, 825, 7; fn. United White Hawk v. Solera Cir. 693 F.2d (See (8th 1982) 637-638, States ex rel. Heral v. Franzen Cir. 667 F.2d (7th 1981) noted, Indeed, cases as the Seventh Circuit Court of cited.) Appeals court itself has limited the of that case. In Makal Arizona Sieling scope denied, L.Ed.2d Cir. F.2d certiorari U.S. 936 (9th 1976) 782, 97 S.Ct. Circuit Court of held that a defend 1563], Ninth Appeals ant’s be even the trial court failed to need not invalidated where guilty plea as “the make a so specific separate finding competency plead, long district court could reconstruct the of the defendant to properly competence based evidence adduced in plead guilty determining competence upon stand trial.” 667 F.2d at fn. (Heral, supra, 4.) Even if we assume for the sake of that a argument slightly higher degree trial, of mental to than to stand we find competence required plead guilty no error. The trial court was aware of defendant’s mental clearly alleged had, all, recently it after ordered a to determine defend- problems; hearing ant’s to stand trial. After that a ad- competence hearing ruling produced defendant, verse to the record the court not convinced defendant shows was to and defendant fails to to evidence incompetent plead guilty14 point from which we can conclude the court should have entertained a doubt defendant’s defendant did not regarding competence. Significantly, request a second before competency hearing pleading guilty.

Later, in he a motion to withdraw the defendant claimed guilty plea,15 was “not of sound mind when he entered his Attached to the motion plea.” was a declaration Dr. at the one the witnesses who testified Stephens, trial, earlier to determine to stand in he hearing which competence opined he defendant “was and not of sound mind when mentally incompetent declaration, however, any entered The did not guilty plea].” present [his new evidence relevant to the issue of competence plead guilty. 138 motion was denied without discussion. v. (Cf. Kurbegovic (1982) People 731, 755, fn. 19 error in Cal.App.3d refusing Cal.Rptr. [188 268] [no 14 accepted plea sentencing, gave closing After the court but before defense counsel said, argument “everybody agrees . . . problems.” that Mr. Wharton has serious mental said, “Well, my judge acquiescence The trial in and silence be taken as an in broke lest what state, you any problem.” let me state that I don’t think he has mental When counsel dis agreed, judge replied expert competency hearing merely that the witnesses at the conclud “depressed.” ed defendant was 15 rely hearing Defendant the lack of a second in special did on his motion to strike the allegation. circumstance

585 or absent in circumstances change presen- reconsider decision competency 534, 548 v. Zatko 80 (1978) Cal.App.3d tation of evidence]; People new [145 [same].) Cal.Rptr. 643] have evidence that could

The record thus does not reveal “substantial” (Cf. to plead guilty. led the trial court to doubt defendant’s competence Hale, 44 incompetence Cal.3d at evidence [substantial we find the court duty stand trial to hold a triggers hearing].) Accordingly, hearing. was under no to hold a second obligation competency We claim the court abused its discretion reject likewise defendant’s him Section 1018 allow to withdraw his failing guilty plea. permits trial court to a criminal defendant to withdraw his “for guilty plea allow “ However, cause ‘the of such a rests in the good shown.” withdrawal plea sound discretion trial may of the trial court and not be disturbed unless the court has abused its An discretion.’ court will not appellate [Citation.] disturb the denial of a clearly motion unless the abuse is demonstrated.” (In 801, re Brown (1973) 1153], Cal.3d P.2d Cal.Rptr. [108 v. Francis quoting, part, 8].) P.2d People It is the defendant’s burden to evidence of cause clear and produce good evidence. convincing Cruz 12 Cal.3d 566-567 (People 242, 526 P.2d 250].) Defendant relies on the declaration of Dr. us to Stephens urging conclude the trial court abused its discretion the motion. This by denying evidence, however, substantially was the same as that in defend- presented ant’s competency and was contradicted other evidence. hearing expert Because this does not showing constitute clear and evidence that convincing motion, the court abused its discretion in we defendant’s denying reject assertion that reversal is on that required ground.

Inasmuch as defendant no elaboration or on the provides argument point, reject we also his claim that refusal to allow him to withdraw his plea trial, violated his constitutional to due rights a fair and to be free of process, Fifth, Sixth, cruel and unusual under the and Four- punishment Eighth teenth Amendments to the federal Constitution. v. {People Blankenship, 992, 213 supra, Cal.App.3d 995-996.)

e. to Kill Intent defendant

Although guilty 1975 to the second pleaded degree Pierce, murder of he contends circumstance prior-murder special erroneously sustained him because there was no against he showing kill, however, intended to kill Pierce. An intent is not an element of the 586 1, 26 47 Cal.3d (1988) circumstance. v. Malone (People

prior-murder special 525, 43 v. Cal.3d (1987) 762 P.2d Hendricks 1249]; Cal.Rptr. People [252 584, 66, 1350].) 737 P.2d Cal.Rptr. 595-596 [238 two cases con occurred before we filed those

Because defendant’s crime circumstance, violate he contends it would struing special prior-murder Amendment to under the Fifth apply his constitutional to due right process Constitutions prohib them in this case.16 Both the federal and state I, 9, Const., 10; art. Cal. it the facto of the laws. (U.S. ex post application §§ Const., I, on the these are limitations 9.) powers art. Although provisions § 430 v. United States (1977) branch legislative, judicial, (Marks 188, 260, 264, Oregon S.Ct. Ross v. 990]; (1912) U.S. 191 L.Ed.2d 97 [51 458, 463, 150, on 227 161 33 S.Ct. “the 220]), principle U.S. L.Ed. [57 have Clause is based—the notion persons which post [ex facto] rise to criminal give penal to fair of that conduct which will right warning As liberty. ties—is to our of constitutional concept fundamental [Citations.] such, Process action the Due against judicial that right protected Amendment.” the Fifth at 191-192 (Marks, supra, pp. Clause of [51 v. 378 U.S. 347 City L.Ed.2d at see also Bouie Columbia 265]; (1964) p. 894, 2 Keeler v. Court 1697]; L.Ed.2d S.Ct. Superior [12 617, 40 420].) 470 P.2d A.L.R.3d Cal.Rptr. [87 effect are Not all of statutes a retroactive judicial having interpretations The United States Court has explained however. prohibited, Supreme retroactive of an “unex only the Fifth Amendment forbids application criminal statute.” or “unforeseeable of a judicial enlargement pected” Columbia, at v. 378 U.S. at L.Ed.2d City pp. (Bouie supra, Court, California case law is in accord. 899-900].) Superior pp. {Keeler Baert, 634-635; 2 Cal.3d at In re supra, Cal.App.3d pp. en judicial of Carlos was “an unforeseeable overruling Anderson's [finding statute,” Walker v. Meehan Bouie]; of a criminal largement citing 1290, 1303 definition statutory Cal.App.3d 171] [new or in reference to previously “cannot be said to be indefensible unexpected existing law”].) the of section

We need not in this case even decide whether interpretation 190.2, in 43 Cal.3d and Malone 584) subdivision Hendricks (a)(2) (supra, unforeseeable, however, at the time because 1) 47 Cal.3d was (supra, 16 felony-murder necessary special cir Although held intent to kill was a element of the we 79, 862], (1983) Cal.Rptr. 131 672 P.2d Superior in Carlos v. Court 35 Cal.3d cumstance [197 People (1987) v. 43 Cal.3d 1104 subsequently we overruled that decision Anderson [240 585, felony-murder involving special the circumstance com Cal.Rptr. 742 P.2d Cases 1306]. Anderson, however, apply requirement. must the intent-to-kill mitted after Carlos but before (In 418].) (1988) Cal.Rptr. Cal.App.3d re Baert 205 514 [252

587 Smith, be circumstance special defendant killed the law did require murder intentional. the was showing prior evidence supported circumstance statutory special language expressly permits as convicted of second well degree if the accused has been finding previously murder, can commit and it has been the rule that one long as first degree kill as malice afore so intending long second murder without degree 79, v. 15 Cal.3d 87 be Antick thought may (People (1975) implied. [123 475, kill or 188 either intent to 43]; 539 P.2d Cal.Rptr. requires § [malice heart]; circumstances “an abandoned and 17 Cal.Jur.3d showing malignant Law, 201, Criminal 314 malice no (rev.) specific p. [“implied requires § intent to Because neither Hendricks nor Malone constituted a kill”].) judi statute, cial no due concerns are enlargement process implicated.17 Penalty Phase

1. Witt Error Witherspoon/ dire,

After extensive voir successfully challenged prosecutor prospec tive juror Wesstrom for cause. Defendant contends that in granting the trial court challenge, erred under the set forth in Wither principles 776, v. Illinois U.S. 510 spoon (1968) 391 L.Ed.2d 88 S.Ct. heAs [20 1770]. however, recognizes, court high substantially modified the Witherspoon test and established a more lenient standard for for cause in excusing jurors 841, case. v. capital (Wainwright Witt 469 U.S. 412 L.Ed.2d [83 105 S.Ct. Witt 844].) that the trial court determine requires “whether the juror’s views would or ‘prevent substantially of his impair performance ” duties as a juror accordance with his instructions and his oath.’ (Id. Witt, therefore, p. L.Ed.2d at “Under pp. 851-852].) duty our is to [83 ‘examine the context surrounding juror’s] exclusion to determine [the whether the trial court’s decision that juror’s] beliefs would “substan [the tially impair of his duties ...” performance fairly supported ” record.’ (Miranda, Cal.3d at Darden Wain quoting 144, 154, wright (1986) 477 U.S. L.Ed.2d 106 S.Ct. 2464].) Defendant it contends would be unfair to the Witt fundamentally apply standard this case because both defense counsel and the for- prosecutor their mulated voir dire based on the twin standards questions Witherspoon of “unmistakable clarity” and “automatic” the death inability impose argues People 17Defendant v. Malone Cal.App.3d supports P.2d position, claiming it kill in prior holds that intent to murder is re 1249] case, however, quired prior-murder to sustain special reading a circumstance. A close of that 190.2, merely reveals that it held that sustain a (a)(2) special section subdivision circum stance, see, ante, present (But murder must be an intentional one. p. fn. 16 [intent felony-murder kill required circumstance].) for special case, in unfairness to defendant this We no fundamental penalty. perceive however, and still higher because the was held to a standard prosecutor his for cause. Defendant’s convinced the trial court to grant challenge in assertion that of the Witt test his case violates (i) related employment laws, constitutional ex facto of the as against post application prohibition well as his to due also fails because Witt was decided (ii) right process, case, any before defendant’s trial. In we have the Witt standard applied “ cases, sense, other it and because California courts finding good ‘make[s] have court when generally teachings high determining followed may a be excused for cause because of his views juror prospective properly v. 45 Cal.3d Guzman regarding capital punishment.’” (People Ghent, 917], P.2d quoting People supra, at reject Cal.3d We thus his ex facto and due p. 767.) post process arguments. case,

In this Wesstrom stated he did not think he would juror prospective vote to the death unless it was shown that the accused’s impose penalty death would “benefit” someone. He was about whether the equivocal prose- cution could evidence which could convince him to vote for the present death out the theoretical that such evidence holding penalty, possibility but He existed that such evidence could be expressing skepticism presented. did not believe the was such a “benefit” and goal penological punishment did a not believe the death was solution or that benefited penalty penalty if anyone. He that he could vote for the death it could be opined penalty so he the victim back to life. shown could doing bring When the trial noted it court was granting prosecutor’s challenge, however, say, standard. It went on to that “There applying Witherspoon absolutely my is no doubt in mind and I make a factual determination at this that the the case would be juror’s ability judge point prospective substantially his beliefs the death This impaired by concerning penalty.” as to on this court factual Wesstrom’s state mind finding binding and satisfies the dictates of Witt. Al (Ghent, 768), Wesstrom did not rule out for the death though unequivocally voting penal only of his answers on voir dire that he was out ty, gist holding theoretical that evidence could be shown which would convince possibility Thus, him to vote for death.18 of his voir dire answers with the qualifying death, asked, difficulty stating “probably” voting After have for Wesstrom was he would do, McKinley you anything prosecutor, “is there Mr. as a to convince that the else could any penalty appropriate punishment replied, death case?” Wesstrom “If he could was the that, benefit, anyone taking convince me or else in so a life there would be a then I have to ac Why way] by say cept possibility question . . . I I did does exist. answered the [the [[[] ing ‘probably,’ presume experiences go through. I all the that we could because don’t know any say My experience, presented I have been with evidence to to me that there limited never by taking another human life. . . .” has been benefit

589 context, the trial court’s read in does not undermine word “probably,” ability his “substantially impair” conclusion that Wesstrom’s views would Guzman, [juror’s 45 Cal.3d at 956 p. qualifying to be (See impartial. “I and “I think” did not under the words believe” voir dire answers with of substantial finding impairment].) mine court’s Testimony 2. Prior Admission Victim’s Rape forcible The trial court found the victim of defendant’s 1975 rape and thus the was unavailable as a witness at the penalty phase permitted to the Defend testimony jury. to read her prosecution preliminary hearing of the witness but unavailability ant does not contest the court’s on ruling him was against his constitutional to confront witnesses argues right Const., v. Texas Amend.; violated this 6th Pointer by (U.S. procedure. 923, 926-927, 400, 380 U.S. 403-405 85 S.Ct. L.Ed.2d [13 1065] Const., I, art. Al states]; 15.) clause Cal. applicable [confrontation § a of a though confrontation is fundamental requirement component “ trial, fair a to the confrontation recognized ‘exception requirement [is] a testimony where witness is unavailable and has at given previous judicial proceedings against subject same defendant which was to cross-exami ” 969, nation that defendant.’ Louis (People [232 728 P.2d Barber v. U.S. 180], quoting Page (1968) 390 255, 258, L.Ed.2d 88 S.Ct. 1318].) Code, This is reflected in section of the exception Evidence which that “Evidence of former provides testimony is not made inadmissible rule if the . . . hearsay declarant is unavailable as a witness and [t]he whom the former is party against testimony offered was party action or proceeding testimony right which was and had the given to cross-examine the an opportunity declarant with interest and motive similar to that which he has at the hearing.” (Italics added.)

Although defendant had the to cross-examine victim opportunity rape B. Jane at the 1975 objective he claims the preliminary hearing, examination in the preliminary was dissimilar from that penalty phase trial. Barber v. 390 U.S. he notes: “A capital Quoting Page, supra, a much into the preliminary hearing ordinarily searching less exploration trial, merits of a case because its function is the more limited simply than one of whether cause exists to hold the accused for determining probable difference, claims, trial.” at This he (Id. 260].) L.Ed.2d p. compels conclusion that his “interest and motive” when cross-examin- victim in the former similar ing rape sufficiently proceeding his interest and motive in the and that Evidence Code present proceeding, section 1291 is inapplicable. however, a court determines Court later that when opined,

The Supreme unavailable, for may justification holding is “there be some the witness cross-examination of a witness at a preliminary hearing the for opportunity v. (Barber Page, clause.” satisfies the demands of confrontation Later, v. (1980) L.Ed.2d at in Ohio Roberts 260].) 390 U.S. at 725 p. [20 597, court found the 2531], 448 56 L.Ed.2d 100 S.Ct. the high U.S. [65 hear- clause not violated the admission of by preliminary confrontation was actually by cross-examined testimony, when the unavailable witness was ing in the defendant the former proceeding. in is “Preliminary hearing testimony

California law is accord: pre defendant, court, in of the at a time when sented open presence counsel, in a the defendant by defendant is which represented proceeding witness, to cross-examine the and has both the motive the opportunity is in a formal court testimony transcript. reported preserved testimony these circumstances the introduction of hearing preliminary unavailable, trial, not violate either the when the witness is does legally rule ... or the defendant’s constitutional of confrontation hearsay right 162, 385, v. Guerra 37 Cal.3d 427 (1984) Cal.Rptr. (People [208 [citations].” 749, 755 690 P.2d see also v. Johnson 39 635]; Cal.App.3d People 695 545]; Cal.Rptr. People Benjamin (1970) Cal.App.3d [83 764].) Cal.Rptr. case,

In the the record shows that at the 1975 preliminary present on the defendant’s conducted a charge, attorney searching hearing rape cross-examination of the victim in an to discredit her. Defend attempt rape available, on ant contends that had she been he would have attempted, cross-examination, facts a consistent “demonstrating pattern develop mental state from to the time of the 1986 homicide.” It [defendant’s] any seems Jane B. have had this of information and in doubtful would type case, such would have been outside questions apparently scope direct testimony.

We defendant an “interest and motive” at that former conclude had trial, he in his sufficiently phase similar to that which had hearing penalty namely, to discredit the witness’s account of the crime. admis- Accordingly, sion of testimony was permissible.

3. Admission Photos Autopsy of

Over defendant’s the trial court admitted three objection, photo Pierce, victim, murder as he defendant’s 1975 was found graphs police after his death. Defendant were irrelevant and their argues photographs admission reversal. “The admission of a lies requires victim photographs court, discretion of that and the exercise the discretion the trial within of the photo value on unless probative will not be disturbed appeal v. Carrera effect.” (People their clearly outweighed by prejudicial graphs We have 121].) P.2d gruesome; are not they and find particularly examined the photographs over the indeed, the trial court excluded the most graphic picture Moreover, to corroborate the were relevant prosecutor’s objection. pictures Rosander, who the testimony pathologist the of Dr. clarify autopsy after {Ibid.) examined Pierce the killing.

4. Alleged Prosecutorial Misconduct misconduct in the committed Defendant contends prosecutor prejudicial “ ‘Prosecutorial at the of the trial. variety ways penalty phase methods to at the or reprehensible

misconduct use of implies deceptive ” Haskett, supra, either or the v. jury.’ the court tempt persuade (People 946, 841, 866, 30 11 955 v. Strickland Cal.3d quoting People to cur object 523 A defendant’s failure to 672].) P.2d Cal.Rptr. misconduct, however, v. Lewis the issue for (People able waives appeal. Lucky, 50 Cal.3d 786 892]; supra, P.2d Green, 293; Cal.3d at 27 Cal.3d 34.) supra, p. a. Redirect Detective Cook Examination of admissibility the Prior to the discussed the penalty phase, parties confession, in defendant’s confession the Pierce In that defend killing. claimed ant that he killed Pierce as a result of a homosexual apparently advance the victim had ruled made. Because the confession had been inad Arizona, Miranda 384 U.S. grounds 436) missible on (Miranda case, the 1975 the he to introduce that would prosecutor agreed attempt caveat, “if evidence on direct examination. He this however: there gave an by showing would be the defense to the murder that attempt mitigate . . . was killing] to homosexual advance response lewd-type [Pierce’s victim, I negate then would be desirous of evidence to presenting addition, In that.” said he would not ask the detective prosecutor if about confession “but that cross- anything up through defendant’s comes examination, . ... . . then to that I forward want looking court] [the be aware of what I would be to introduce to rebut the that thought trying this because victim had it really wasn’t bad of a murder coming it, or he like that.” type argument, something it or started or provoked Cook, the officer to defendant con- cross-examining Detective whom asked, in the your fessed his Pierce defense counsel guilt slaying, “During Mr. B.], discussion with Wharton Jane did he at some regarding rape [of time tell you he was for the murder of Mr. responsible Pierce?” Cook “Yes, redirect, elicited, he replied, did.” On then over prosecutor objec- tion, the balance of defendant’s admission of guilt.19Defendant claims this was misconduct.

To the extent defendant is now line of claiming prosecutor’s violation, questioning because of the earlier improper Miranda claim fails because he did not object on that ground. (Lewis, supra, Cal.3d at Defendant p. 282.) it is “sheer argues an sophistry” require objection when the prosecutor just had informed counsel (outside pres ence of the jury) that Cook had been instructed not to mention the previous ly record, however, evidence. The suppressed shows that although pros information, ecutor he agreed would not elicit the he reminded the court information, should out such bring he would as well order defendant to rebut any adverse inferences by the generated testimony. officer’s Under circumstances, these we cannot excuse defendant’s failure to make a timely Miranda objection.

Defendant also that he was argues lured into improperly Detective asking Cook whether defendant had for the accepted responsibility Pierce killing because defense counsel had asked the same of another witness question and failed to the same provoke from response He prosecutor. claims this tactic violated his to due right process.

We no error. perceive By evidence eliciting that defendant had accepted responsibility for the Pierce killing, defendant presented evidence from which the jury could infer that his moral for that crime was culpability redirect, somewhat reduced. On prosecutor entitled to rebut that [By the prosecutor, McKinley] Mr. you why Did he tell “Q. he did it or how he did it? witness, [By “A. why Detective He told me he did it and he told me how he Cook] did it. say? What did he “Q. “A. He fact, told me that Mr. activity. Pierce solicited him for homosexual the com- ment that— “Mr. Duval I going object beyond am being to this as scope [defense counsel]: the cross-examination. “The Court: Overruled. By Mckinley: Mr. Go ahead. “Q. “A. him, precipitated comment that you his action is Pierce had said to T bet would said, great be [j|] 'Nobody in bed.’ way. Nobody. And he Nobody.’ [j|] talks to me that And said, he said he kicked him. He fell down. He continued any- to kick him. He ‘He never said ’ thing said, except to me Mr. “I [j|] Pierce can’t breathe.” He continued to kick him in the him, head and kick him and him kick and kick and that’s what he said to me. Mr. any Did Wharton property indicate he took “Q. from Mr. Pierce? Yes, “A. he did. Did that include a watch?

“Q. “A. Yes.” conversation, that defend- revealing entire with evidence inference but was of remorse an admirable expression was not admission guilt ant’s morally objection- a false and showing circumstances made under instead . . conversation of . “Where part justification. [a] able sense of personal be may subject the same the whole on one by in evidence party, ... is given Code, 356.) (Evid. into an adverse party.” § inquired in Evidence Facts Not Arguing b. and “Mercy sympathy said: the prosecutor his

During closing argument, He mercy and sympathy? the defendant consider I mention. How did long Pierce to he? No. He beats Did mercy to ask for you sympathy. is going money and his is to steal his watch mercy sympathy death and ever?” The anybody he show to or did mercy sympathy .... much [H]ow later, that defendant remarking theme a bit returned to this prosecutor sorrow, like to consider when you I would “No remorse or which showed mercy. or show asks to be you sympathetic Mr. Duval counsel] [defense asked, or Later, mercy “How much The defendant didn’t.” prosecutor did he show? None.” sympathy argument, prosecutor

Defendant this making argues in evidence. At the misconduct facts not arguing committed prejudicial threshold, the on appeal. note there no thus issue objection, waiving we case, a 50 at a lack of remorse was any Cal.3d (Lewis, supra, p. 282.) has a wide-rang inference from the evidence. permissible prosecutor “[T]he may . . argue to discuss the case in ing right closing argument. [but not] 50 on the evidence (Lewis,supra, facts or inferences not based presented.” Moreover, did not constitute Cal.3d at 283.) prosecutor’s argument p. was a factor that defendant’s failure to confess an inappropriate suggestion 478, in v. Keenan 46 Cal.3d 509 Cal.Rptr. aggravation. (People [250 550, Ghent, lack of 771.) Although 758 P.2d 43 Cal.3d at 1081]; p. supra, v. 38 Boyd (1985) remorse is a factor statutory aggravating (see People 762, 1, factors under 700 P.2d [aggravating Cal.3d 773 Cal.Rptr. [215 782] statute]), in the the 1978 death law limited to those set forth penalty “[t]he remorselessness, or an absence of may that evidence of prosecutor suggest remorse, mitigating remorse as a evidence of of weighs against finding 510; v. Morales (1989) factor.” 46 Cal.3d at (Keenan, People Cal.3d 770 P.2d 244].) prosecutor’s argu Cal.Rptr. ment did not these bounds. overstep

Defendant also claims lack of remorse is too a factor on speculative held, however, We have that which to base death sentence. concept “[t]he oflfensesas a factor sometimes less warranting of remorse for past mitigating severe or condemnation is universal.” punishment (Ghent, supra, Cal.3d It that the p. 771.) follows lack of remorse is also relevant.

c. Dangerousness Future

Defendant of three lines of complains initiated inquiry pros ecutor which allegedly jury informed that defendant would be a danger others He claims prison. this evidence ran afoul of the prohibition against of expert predictions future dangerousness. (Murtishaw, supra, 29 Cal. however, 3d at pp. 767-775.) Because defendant object, failed to any error is waived. (People Thompson (1988) 245, 753 P.2d 37].) issue, however,

Even we reach the assuming no error is When apparent. Hamilton, Dr. questioning one of defendant’s two psychotherapists, prosecutor asked whether another inmate or would be prison guard safe the same cell with defendant. She she did not replied obviously know. This falls short of a prohibited expert prediction future Simi- dangerousness. larly, Patterson, when Dr. questioning the defense expert, prosecutor asked him to comment on another doctor’s assessment that if defendant cornered, that he is “misperceives then there is a great potential for immedi- Patterson, ate[,] however, violent impulsive, behavior.” Dr. stated unequi- that vocally it would be safe to defendant in a place cell with another inmate. Again, there was no expert prediction future violence. Finally, official prison some provided testimony concerning overcrowding pris- ons. The prosecutor later told the trial court (outside presence that the jury) were questions intended to show defendant would not be However, alone in his cell. from leap logic required jump information to a conclusion of future is so dangerousness large we cannot conclude it is equivalent to an of defendant’s expert’s prediction future behavior.

d. Converting Evidence Into Mitigating Aggravating Evidence Hamilton, When Dr. cross-examining the asked her to prosecutor explain what she meant by “atypical control.” After it describes impulse explaining a person who is impulsively and uncontrollably aggressive, prosecutor asked whether “It could happen right “Possibly.” now?” She He replied, continued: “Mr. Wharton off the might go fly handle and over Mr. Duval Detective pop Tonello here?” She admitted it was possible.

Defendant claims that this by questioning, prosecutor improp erly to convert attempted evidence into mitigating aggravating evidence. He issue, however, waived this by failing object. (Lewis, supra, Cal.3d at case, implications was allowed explore In any prosecutor p. 282.) of atypical raised the issue having on direct questioning; raised defendant control, cross-exami immunity on from defendant could not insist impulse 1168, 1211 3d v. Gates Cal. on the subject. (See People nation 301].) 743 P.2d Cal.Rptr. Witnesses in Cross-examination Alleged

e. Misconduct of Defense misconduct when next committed Defendant argues prosecutor could lead to Dr. Hamilton about stressors which questioning possible asked the in a manner. The twice defendant out violent acting prosecutor Jane B. had was been) whether at knife being point (as witness raped both times the trial objected stressor. Both times the defense counsel Thus, commit court sustained the even objection. assuming prosecutor misconduct, ted there was no prejudice. Bross, De-

When the custodian of records for the cross-examining Lucy Corrections, that de- elicited the information partment prosecutor fendant served for the and murder convictions only years six 1975 rape claims he this was sentenced to consecutive life terms. Defendant although because it should the death jury error prejudicial suggested impose because had not been se- defendant’s for penalty punishment past wrongs addition, vere had enough. Bross revealed that defendant several impris- on infractions. Defendant claims this evidence was inadmissible disciplinary 190.3, because none of the incidents involved violence. factor (See (b).) § Finally, elicited from Bross that defendant had violated his prosecutor instead with a woman in his sister in Santa parole living with Lompoc Barbara. be- Defendant claims this constituted misconduct prosecutorial cause defendant’s conduct did not involve violence. condemns,

Because defendant failed to to the he he object now questions waived the issues for To the extent the elicited challenged appeal. questions inadmissible, otherwise nonstatutory (Boyd, evidence aggravating other, manifestly Cal.3d there was no p. 775), prejudice light admitted evidence. properly aggravating (See Wright (1990) People 802 P.2d 427-429 221].) Defendant that the asked Dr. Patterson on also complains prosecutor murder of Pierce and of cross-examination whether defendant’s prior rape 190.3, i.e., Jane B. fell of factor “the (b), within the ambit section presence or absence of criminal the defendant which involved the use or activity by use of force or violence.” Defense counsel but his attempted objected objec- tion was overruled and Dr. Patterson was to answer. We permitted agree this beyond was the of both the direct and the question scope testimony error, however, The harmless. witness’s Defendant admitted expertise. they of those crimes and come within the guilt prior indisputably scope 190.3, Moreover, Dr. (b). section factor Patterson’s answers were quite evasive and thus not The of Dr. particularly damaging. jury’s reception Patterson’s on that thus harmless. subject was opinion Patterson, Dr.

When the also asked him questioning prosecutor whether robbery and often occur in the same criminal De- rape together episode. fendant correctly beyond contends this was the of Dr. Patterson’s scope was, however, case, There expertise. objection, any no and Patterson that he did not know. replied

Defendant finally committed misconduct complains prosecutor about of Jane B. asking (i) robbery robbery count had been (because a dismissed), (ii) state law change regarding admissibility psychiat- deliberation, ric testimony about the reasons for premeditation (iii) addition, In defendant change. comments challenges prosecutor’s that it is a matter of self-defense” “just... attorney for the district to “get to the psychiatrist recently down station to examine police arrested] [a matters, As to these person.” any any the failure to waived error and object from prejudice such and comments on such flowing questions tangential matters was negligible.

f. Demeanor Evidence invited closing argument, jury to consider prosecutor defendant’s demeanor at trial as evidence of his mental condition. “[You’ve him, heard he what sounds like and sat there and watched him. He is for responsible his acts.” Defendant now asserts this was prosecutorial however, misconduct reversal. There was no and in requiring objection, any case, no error. When a defendant his character in issue at the places penalty trial, of a it is for the inferences on that phase capital jury draw “proper issue from their observations of in the defendant courtroom and therefore for the to base a proper on such observations.” prosecutor closing argument v. Heishman (People (1988) Cal.3d 753 P.2d 629].)

5. Dr. Patterson Testimony of B.,

The of his arrest for the night of Jane defendant was rape Patterson, examined Dr. physician specializing psychiatry. Dr. called Patterson to the stand in the People defendant’s penalty phase and, trial over elicited details of capital objection, defendant’s confession that he had killed Pierce. Defendant contends admission of this evidence First, he claims it violated his Miranda rights error for two reasons. was the trial by on similar suppressed grounds because the same evidence was for murder and The record rape. court over his 1975 presiding prosecution Much the record of the 1975 case fails to defendant on this support point. survives, however, court What destroyed was accordance with policy. at the testimony to Dr. Patterson’s shows defendant’s motion suppress called Patter- was denied because it was defendant who preliminary hearing son to the stand. A later minute order reveals defendant’s confession court; Detective Cook there is no by superior was ordered suppressed mention in Dr. the order of the confession to Patterson.

Defendant contends that because his motion to his confessions suppress to both Cook and Patterson was denied at the magistrate preliminary examination, “it is reasonable to conclude that the same motion suppress was made court.” We fail to the reasonableness of this superior perceive and decline to whether defendant his motion assumption renewed speculate Dr. confession to Patterson. Because defendant called Dr. suppress Patterson to the stand as a defense witness at the preliminary hearing, ruled defendant magistrate correctly could not then move to suppress circumstances, evidence. Under these it is more defendant abandoned likely Moreover, this claim court obviously because it was meritless. superior defendant have may decided the motion because there against renewing violation; no evidence of a Miranda we note Dr. Patterson at the testified defendant, that before he penalty phase he read him his Miranda questioned rights defendant waived them.

Second, defendant Dr. argues testimony Patterson’s should have been irrelevant, excluded from the penalty because it was cumulative of phase evidence, Code, other and more than prejudicial (Evid. 352.) probative. § held, however, theAs trial court the evidence of the circumstances of Pierce’s was relevant to rebut slaying raised other de- implication fense evidence that defendant became violent only when impulsively placed in a stressful situation.20Defendant’s confession to Dr. Patterson arguably Pierce, showed when defendant killed he was not under any particular stressor, thus other defense evidence tending negate of brief suggestive i.e., reactive psychosis, loss of contact temporary reality with when faced with a stressful situation. only this was not the inference Although which could, could be from Dr. drawn testimony Patterson’s for (one example, argue Pierce’s homosexual remark caused defendant to experience other, stress), the existence of inferences contrary only affects the weight, not the admissibility, of the evidence. B., 20There was raped girlfriend just evidence that when defendant Jane had suffered a Also,

miscarriage. suggested the defense that defendant killed Linda Smith in the course of ongoing an dispute. domestic Detec- this evidence was cumulative of that given Defendant contends true, tive Cook. Even that to be we fail to see the assuming prejudice, Pierce and in of the fact that defendant admitted especially light killing B., court Jane to his 1975 the trial guilty plea. Although raping pursuant did not make an statement it had balanced the announcing proba- express testimony (see tive value of Patterson’s with its effect proposed prejudicial Green, trial court affirmatively 27 Cal.3d at must show [record the record the court clearly conducted of shows proper weighing factors]), was aware of its Evidence Code section 352 and dis- duty properly under its The court announced that it was charged legal obligation. although motion, was limited denying the Evidence Code section prosecutor to its offer of and could not ask more detailed proof questions regarding circumstances, defendant’s homosexual activities. Under these we alleged think the record shows the trial court exercised its discretion. properly 761 P.2d (People Griffin error, Because we find no also defendant’s Amend- 103].) reject Eighth we testimony unconstitutionally ment claim that admission Dr. of Patterson’s affected the of the death sentence. reliability 6. Instructional Alleged Errors

a. Instructions Accomplice

Defendant have the jury contends the trial court should instructed in sua that the who were involved with defendant sponte persons selling Dennis, victim’s checks her (Barney, her after death property cashing that, and the Perez their brothers) were accomplices, accordingly, testimony must be corroborated before it could be considered at the penalty . . He is mistaken. “An is . one who is liable to phase. prosecu accomplice tion the identical the defendant on trial charged against for offense cause in italics testimony (§ which accomplice given.” murder, Because none of for the victim’s it added.) these was liable people follows none was an and no instruction to that effect was accomplice necessary.

Defendant claims that because the these assis- argued prosecutor persons death, they ted defendant from the victim her were thus stealing before in the homicide. Even if we defendant’s characteriza- accomplices accept tion, however, and the none these witnesses testified at the penalty phase There rely testimony did not on their prosecutor penalty phase. thus no even if we assume error. prejudice

b. Testimony Transcript Rosander, Dr. who conducted the testimony pathologist B., in the Jane testimony Pierce and the the 1975 autopsy rape killing, victim, as both witnesses transcripts from trial jury were presented maintains the trial court trial. Defendant unavailable at the time of were this that it was to consider sua jury sponte erred in to instruct failing live, to “the same rules” applicable subject evidence as if it were given error, if the omission was Even 2.12.)21 live CALJIC No. (See witnesses. however, how he does suggest no and defendant apparent prejudice the claim other than to make by unsupported was harmed the omission the tran- consideration of jury’s the instruction “vital for the proper testimony.” script Penalty the Death

c. Deterrent and Financial Cost Effect of insists the court erred his refusing requested Defendant next deterrent instruction it should not consider informing jury potential effect or financial a sentence of life without the imprisonment possi cost of this bility rejected Thompson, of We have parole. previously argument fails to reason to any Cal.3d at and defendant page present reconsider that decision. CALJIC 2.10

d. No.

The trial CALJIC court indicated it intended to No. give 2.1022to the but an it failed to deliver the jury, through oversight apparent instruction. Defendant claims this omission constituted reversible error. occurred, Even error it was harmless. The most state assuming damaging ments defendant Dr. made to Hamilton concerned his state of mind prior evidence, however, the killing. This was not admitted for the limited pur of the basis of Dr. Hamilton’s It was instead admit pose showing diagnosis. mind, ted as direct evidence of defendant’s state of relevant to the issues of and deliberation. premeditation Hamilton,

Unlike defendant’s statements to Dr. Dr. his statements to Patterson his Pierce murder were admitted for the concerning guilt limited Any of the basis of the doctor’s purpose showing diagnosis. trial, (4th ed.) provided: At the time of defendant’s CALJIC No. 2.12 “In this case testi mony given by prior proceeding a witness at a who was unavailable at this trial has been read you testimony reporter’s transcript proceeding. from the of that You are to consider such you light given in the same and in have accordance with the same rules which been as to testi mony of witnesses who have testified here in court.” testimony 22CALJIC No. 2.10 states: “There has been admitted in evidence the of a medi expert cal of statements made to him the defendant in the course of an examination of the testimony purpose diagnosis. defendant which was made for of such statements may by you only showing be purpose upon considered for the limited the information testimony expert opinion. by you which the medical his Such based is not to be considered as evidence of the truth of the disclosed facts defendant’s statements.” considered this jury from improperly prejudice resulting possibility however, of defendant’s admission in light was marginal, evidence testimony reiterating Cook’s de- in the Pierce murder and Detective guilt resulted from omission We thus find no prejudice fendant’s confession. of the instruction. Jury to Reinstruct

e. Failure error when it trial court committed reversible Defendant claims the (See phase. certain instructions at guilt penalty failed repeat phase 2.13 investigations], 1.03 not make [jury independent CALJIC Nos. should 2.20 of wit statements], [credibility of inconsistent prior [consideration Because none caution].) 2.70 & 2.71 oral admissions with nesses], [viewing terms, was, the by guilt phase, of these instructions its limited to instructions, instructions contradicted those “we phase because no penalty assume instructions jury correctly ‘generic’ believe a reasonable would those 432, 460 v. Brown 46 Cal.3d (1988) continued to apply.” (People [250 1268, 604, v. 45 Cal.3d 758 P.2d Williams 1135]; Cal.Rptr. People 834, 221].) 756 P.2d [248 f. Instruction 27” “Special instructions,

In to the special penalty addition several other phase court, must informed the that “You find a jury at defendant’s request, to any support if there is evidence circumstance exists substantial mitigating him burden of prov it.”23 Defendant claims this on the improperly placed evidence, there by existence of circumstances substantial mitigating the ing limiting Amendment’s by violating Eighth proscription against may of relevant information that con any mitigating consideration jury’s Pennsylvania a less than death. v. vince it to sentence impose (Blystone 265, 1078];McCleskey 494 U.S. L.Ed.2d 110 S.Ct. 262, 287, 305-306 S.Ct. U.S. L.Ed.2d Kemp (1987) 1756].) your read for mitigating that I have The entire instruction states: “The circumstances you may you merely some take given examples are to as of of the factors consideration impose a death in this case. You should deciding into account as reasons for not to sentence sufficient, Any may standing of pay careful to each of factors. one them be attention those alone, you case. But support appropriate punishment a decision in this to that death is not your [1|] factors. mitigating specific to these should not limit consideration of circumstances any relating may to or to the defendant as

You also consider other circumstances the case mitigating A imposing penalty. the evidence as for not the death cir shown reasons [H] find beyond have to be a to exist. You must proved cumstance does not reasonable doubt Any any support it. mitigating a circumstance if there is substantial evidence to mit exists [][] factors, [ffj you may outweigh all the You igating presented aggravating circumstance are permitted mercy, sympathy, deciding weight give mitigat each to use or sentiment what ing factor.” We find the instruction consistent with Amendment Eighth challenged At the heart of defendant’s Instruc- “Special guarantees. interpretation II” that it consideration of a jury’s tion is his assumption precludes unless he establishes its existence a certain stan- circumstance mitigating as a dard of instructions as whole and would proof. Interpreting reasonable we find defendant’s is unreason- juror, proposed interpretation instruction, context, able. The entire clearly read favorable to special defendant, him any may the benefit of doubt it informing jury give short, have of the death we find regarding appropriateness penalty. in the instruction from nothing preventing jury considering mitigating circumstance no matter how or weak the evidence is. strong 7. Admission Stale Evidence

Defendant next contends the testimony from the witnesses who testified about the facts his surrounding 1975 murder of Pierce and rape stale, Jane B. should have been excluded because that evidence was thus on his impinging ability reliability. test its He claims the adequately admission of this evidence under the Amend implicates rights Eighth ment, as well as his Fifth Amendment to due right Defendant has process. however, no explanation, why we should not he conclude waived the issue by his failure to on object this at trial. ground case,

In any the claim is patently meritless. Unlike Gardner v. Florida 393, (1977) U.S. 349 L.Ed.2d 97 S.Ct. cited in in 1197], support, [51 which a capital defendant was sentenced to death due in to the trial part court’s reliance on a sentencing the contents of report, which were not counsel, revealed to defense the mere of time passage between defendant’s 1975 crimes and his trial capital did not significantly ability diminish his to First, challenge 190.3, evidence as question. by section factor required (c), Second, crimes were prior established by convictions. defendant to those pleaded guilty crimes and admitted the truth of the circum- special Third, stance in the case. present the jury was instructed that aggravating the existence of circumstances—including prior felony convictions—must be beyond a proved reasonable doubt. Finally, defendant com- although of his plains inability effectively to confront the witnesses because of the time, 190.3, of we note passage he had notice of this (§ evidence and par. 4) short, cross-examined those witnesses that were available. In we find no constitutional error.

8. Double and the 1975 Jeopardy Crimes

Defendant claims the were to People permitted relitigate his 1975 crimes in violation of the constitutional a proscription against placing criminal I, Const., Const., V; art. Amend. Cal. (U.S. jeopardy.

defendant twice v. McDowell (People We have this claim 15.) rejected previously § 530, 551, v. Melton 1060]; 758 P.2d People Cal.Rptr. defend- 741]), fn. 17 P.2d and 44 Cal.3d we those why does reasons should reconsider persuasive ant not present decisions.24 Be Present Right

9. to Defendant’s he to statutory right claims was denied his constitutional Defendant he he trial. claims during be on numerous occasions present Specifically, to (i) the following proceedings: meetings from in-chambers was excluded testimony, their (ii) Hutcheson and Hamilton about proposed Drs. question she had with a former em- to a a conversation question juror concerning office, Dr. notes of district to discuss Hamilton’s attorney’s (iii) ployee guilt to discuss the alleged prior burglary, (iv) appropriate regarding instructions, a note from a juror discuss phase jury (v) requesting evidence, into (vi) cassette order to listen to a introduced tape tape player at a his attendance juror, regarding question during penalty phase, witnesses, retirement dinner held for one being prosecution planned reading hearing transcript discuss (vii) proposed preliminary B.’s cross-exam- testimony, Jane to discuss the (viii) prosecution’s proposed Patterson, jury ination of Dr. to discuss the (ix) appropriate penalty phase occasions, instructions, ‘“is

A criminal defendant not entitled to be personally present either in or which occur outside of the jury’s chambers at bench discussions in of law or other matters which defendant’s pres on presence questions his “reasonably ence does bear a substantial relation to the fullness of ’ ” 48 v. Bittaker (1989) to defend opportunity against charge.” (People 1046, 630, v. P.2d 659], People Cal.3d 1080 774 Cal.Rptr. quoting [259 603, 264, 618 149].) Jackson 28 309-310 P.2d (1980) Cal.3d Cal.Rptr. [168 obvious, of absence was challenged As is none instances defendant’s was that presence sufficient such defendant’s importance personal 270,101 1852], 24Bullington sup in (1981) S.Ct. cited v. Missouri 451 U.S. 430 L.Ed.2d [68 penalty phase after the de port, inapposite is because that case involved a retrial of same trial, in imprisonment life the first granted. Having fendant’s trial motion was received new Supreme jeopardy principles precluded the state from the United States Court held double Bullington obviously seeking penalty distinguishable in penalty the second trial. death however, case, People punish this not seek anew for from because here do defendant his 1975 crimes.

603 Because he trial. fails to demonstrate to ensure a fair and required impartial trial, we his claim of constitu- reject he or a fair how was denied prejudiced tional error.

10. Other Claims that we have addressed and

Defendant makes a host of additional claims First, in other cases. he we should intercase rejected argues provide review, case to other in the facts of his cases proportionality comparing which the death He that such is re argues review penalty imposed. by both the state and federal Constitutions. He is mistaken. quired (People 1035, 757, v. Caro 46 Cal.3d 761 P.2d see (1988) 680]; Cal.Rptr. [251 29, Pulley v. Harris 465 U.S. 37 L.Ed.2d S.Ct. 871].) reversal, Defendant also if maintains that even no error single compels the cumulative effect of all the errors reversal. Because we do not requires trial, with agree defendant that errors occurred no cumula multiple tive Defendant also prejudice appears. many instances of argues asserted misconduct when prosecutorial defense counsel failed to we object, should overlook the object failure to and find the issue on cognizable appeal. (See Frank People (1985) Cal.3d 736-737 J., P.2d C. [Bird, conc. & dis. We have this opn.].) previously rejected 415] and, notion (Miranda, ante, fn. as 30) explained, even had counsel timely no objected, misconduct occurred. prejudicial

Defendant finally contends that various flaws the capital sentencing render process his death sentence arbitrary and in violation of capricious Constitution, the Eighth Amendment of the federal and his to due right process under both the state and federal Constitutions. He recognizes this court has rejected identical claims in the no past presents persua sive reason why our previous decisions were in error. He admits he is these issues raising because the federal yet courts have to resolve some them. We thus adhere to our decisions in v. Coleman People 112, 813, Cal.3d 160 768 P.2d and Cal.Rptr. 32], Rodriguez People [255 667, 42 (1986) Cal.3d 730 Cal. 726 P.2d Rptr. We like [230 113]. wise reject defendant’s insistence that the trial court erred by failing instruct, sua that a term of life sponte, without imprisonment the possibility means that parole defendant will never be v. Bonin paroled. (People 659, 687, (1988) case, Cal.3d 758 P.2d In Cal.Rptr. 1217].) any [250 defendant’s jury was instructed that “life without the possibility of parole means exactly what it The says: defendant will be for the rest of imprisoned his life.”

Conclusion entirety. affirmed in its is judgment J., J., Baxter, Panelli, J., Arabian, concurred. and MOSK,J. dissent. —I finding verdict jury’s to support the evidence insufficient

Plainly, theory presented murder on the sole of first guilty degree defendant deliberate, it is murder. Specifically, and premeditated prosecution—willful, and deliberation. insufficient as to premeditation evidence, is to its “task sufficiency When a court assesses have found that a reasonable trier of fact could determine whether beyond the defendant guilty sustained its burden of proving prosecution must be ‘substan- The judgment supported reasonable doubt. [Citation.] evidence,’ ‘reasonably inspires has been defined as evidence tial which ”’ v. Morris (1988) value.” (People confidence and is of “solid evidence,” The term “substantial 756 P.2d 843].) Cal.Rptr. case, a course, any In given and not mere speculation. means solid evidence oc- may have any about number of scenarios “may court speculate however, inference, on not be based may suspi- .... A curred reasonable surmise, alone, conjecture, supposition, cion or on imagination, speculation, from be an inference drawn ... A of fact must finding or work. guess without ... a mere as to probabilities evidence rather than speculation marks and internal italics original, quotation evidence.” {Id. omitted.) sign paragraph 550, 447 P.2d v. Anderson 70 Cal.2d (1968) People has found sufficient which this court we stated: “The of evidence

942], type into three basic and deliberation falls sustain a finding premeditation the actual defendant did prior facts about how and what categories: activity directed that the defendant was engaged which show killing in, toward, bemay result the killing—what as intended to explicable prior facts about the defendant’s activity; (2) characterized as ‘planning’ could jury the victim from which conduct with relationship and/or motive, victim, inference of ‘motive’ to kill the which reasonably infer a inference an or would turn (3), support with facts of together type ‘careful reflection’ and the result of ‘a pre-existing that the was killing or rather than ‘mere unconsidered of considerations’ thought weighing nature of the facts about the [citation]; (3) rash executed’ hastily impulse so infer that the manner of killing from which could jury killing intentionally have killed the defendant must that particular exacting a to take life in a design’ his victim’s according ‘preconceived particular a can way jury reasonably for ‘reason’ which the infer from facts of type (1) or (2).

“Analysis of the show that this verdicts of first cases will court sustains murder there is evidence of all three and other- degree when typically types wise at extremely least evidence of or evidence of requires strong (2) 26-27, conjunction with either or Cal. (3).” (70 2d at italics pp. original.)

It is that a rational trier of fact plain could not have found defendant willful, deliberate, guilty beyond a reasonable doubt of and premeditated murder: premeditation deliberation were not a beyond reason- proved Indeed, able doubt. the evidence of these two elements is nonex- practically istent, and certainly is far too insubstantial to a beyond support finding most, reasonable doubt. At the record an inference that supports the killing resulted from an of violence explosion without significant or forethought reflection on the of defendant. part there is

Specifically, no substantial evidence that defendant planned attack. In conclusion, of their support opposite the majority what present they label ante, “possible (maj. at opn., p. 547) assertedly indic- scenario[s]” ative of Those planning. “scenarios” rest on a crucial factual assumption, wit, hammer, that a which was the likely murder from weapon, missing a toolbox in a garage and was taken from that location not before the long ante, fatal attack. (See maj. however, at opn., That p. 547.) assumption, There is unsupported. no simply evidence whatever that the hammer belonged in the toolbox. Nor is there any evidence whatever that it had recently. been removed The majority derive their “scenarios” from an unconventional source: made argument by the and not from prosecutor evidence ante, adduced the parties. (See maj. at opn., pp. 547-548.) prosecutor’s argument may have encouraged jury speculation that defend- ant planned But neither a killing. prosecutor’s nor argument “specula- “evidence,” tion” is less still “substantial evidence.” Next, there is no substantial evidence that defendant had motive to kill. conclusion, support their opposite the majority turn again not to evidence but to the ante, prosecutor’s argument. (See maj. opn., 547- pp. It is 548.) possible indulge speculation defendant had a motive— but it is elementary that is not “speculation” “evidence.”

Finally, there is no substantial evidence that defendant employed a man- ner of killing indicates a preconceived to kill in design a certain way.

606 ante, at In this p. as (Maj. opn., 548.) The concede much. majority expressly substantial evidence demands: it is that they necessity do what only pellucid on the is point lacking.1

Therefore, jury’s finding evidence is insufficient to verdict support willful, deliberate, murder. The con- of and premeditated defendant guilty charge retrial the underlying viction be reversed. And on accordingly must as barred the double clause of the Fifth Amendment applied is jeopardy Amendment. clause of the Fourteenth through process to the states the due 657, 24 v. 209-210 (See, e.g., (1979) Pierce People [155 v. 437 1 P.2d Burks United States U.S. 91], 595 following Massey v. U.S. 19 L.Ed.2d S.Ct. and Greene 2141], L.Ed.2d S.Ct. 2151].) evidence, insufficiency on the I need my

Because of conclusion however, is general reach other issues. One further of any question, importance. of the trial erred it his claim rejected

Defendant contends that court when testimony and as to admitted subsequently psychotherapist-patient privilege Hamilton, a certain he made confidence to Dr. Judith communications Hutcheson, Dr. in the clinical and Bellenden psychologist, psychiatrist, of course psychotherapy.

The recognized—rightly—the psycho- court general applicability on the Evidence Code section facts therapist-patient privilege presented. declares, . to that “the . . has pertinent patient part, privilege disclose, refuse to and from a confidential disclosing, another prevent . . . .” communication between and patient psychotherapist But the court the so-called believed—wrongly—that “dangerous patient” Evidence to the exception psychotherapist-patient privilege implicated. here, that Code section as relevant (hereafter 1024) section provides, if “There is no ... has reasonable cause psychotherapist privilege be believe in such mental or emotional condition as to that is patient and that to himself or to the or of another dangerous person property is necessary disclosure of the communication threatened prevent danger.” of section 1024 are The psychotherapist-patient privi- words clear. that reasonably be claimed believes

lege psychotherapist cannot when necessary is to avert injury. disclosure patient dangerous recognize appears support 1I inference of kill. But defendant’s conduct an intent to course, intent, premeditation such an amount to or entail or deliberation does not Anderson, (See 26.) People itself. 70 Cal.2d at is the intent section 1024: to legislative underlying prevent Also clear 1024; also (See future harm. see Recommendation an Evidence Proposing § 1965) Rep. (1965) Code Cal. Law Revision Com. Cal. Law Revision (Jan. comment, Code, Com. Evid. p. 199.) § In view of the it is the trial erred in manifest that court foregoing, defendant’s claim of on the basis rejecting privilege psychotherapist-patient of the “dangerous patient” exception. claimed,

At the time the was section was privilege inapplicable to the clear of its according meaning terms. It is that at plain undisputed time, belief, that neither Dr. nor Hamilton Dr. had reason- any Hutcheson otherwise, able or that defendant was It is similarly dangerous. undisputed time, belief, otherwise, that at any that neither had or reasonable that any disclosure of necessary communication was to avert any injury. Further, claimed, the time the section 1024 privilege was inappli- cable because its intent not be could it Again, furthered. that undisputed time, at that there was longer any no that could injury have been averted. Cessante ratione cessat et legis, lex. ipsa however,

The majority, conclude that the trial court did not err. doing so, with, 1024. they misconstrue section To begin they read the provision contrary to the noted, clear of meaning its terms. As plain section 1024 declares that “There is no ... if privilege the has reason- psychotherapist able cause to believe that the is in patient such mental or emotional condi- tion as to be dangerous to himself or to the or of another person property and that disclosure of the necessary communication is to the threat- prevent ened The danger.” provision does simply not state “There is no privi- ... lege if the had psychotherapist reasonable cause to believe that the patient was in such mental or emotional as to condition be to dangerous himself or to the or person and that property another disclosure of the communication was to necessary prevent the threatened danger.”

Further, majority the section 1024 interpret in violation of underlying stated, intent. legislative As purpose was avert future harm. The majority discern a apparently legislative intent avert future and to harm the harm is not punishment averted. But such an intent is not facilitate if disclosed in words of the provision any or relevant extratextual material. certainly could Legislature have section drafted 1024 to state rule nihilo—viz., majority now create ex a “dangerous” communication is

outside the scope ab privilege initio. For example, Evidence Code commu- “criminal” or “tortious” that a substance provides

section is no ... if “There of the privilege: privilege nication is outside scope or aid or obtained to enable sought were the services the psychotherapist or a tort or detection escape commit a crime anyone to commit or plan a crime or tort.” But fact the commission of or after apprehension 1024 to state the new rule section that the did draft Legislature remains majority.2 created of claim psychotherapist- court’s error in defendant’s rejecting

The trial testimony Drs. Hamil the of admitting and subsequently patient privilege was unquestionably as to confidential communications ton and Hutcheson as to and premeditation basis for only arguable speculation The prejudicial. There is a reasonable testimony. probability deliberation was laid error, have been more favorable to that absent the outcome would the 818, 46 P.2d Cal.2d 836 (See defendant. Watson People 243].) 3 above, entirety I reverse in its judgment stated would the

For the reasons first degree. and retrial the of murder the charge bar on BROUSSARD,J —I dissent. 10241 Evidence Code section

The hold that under majority disclosure of does not privilege protect against psychotherapist-patient threatened necessary if: is to (a) protect communications disclosure 583, 399, 127], P.2d 789 on People 2In v. Clark 619-620 [268 baldly . majority rely, “If. . which the the court stated that statements [made confidence] they privileged, . . . persons not itself have revealed to third in a communication is been Code, Leg longer privileged. enacting the Evidence longer are confidential” no no Proposing rejected (Recommendation an Evidence “eavesdroppers islature the old rule.” comment, Code, supra, Cal. Com. Rep., 1 Cal. Law Revision Com. Law Revision Code, 954, attorney-client specific privilege but [speaking Evid. with reference to the p. 174 § above, By quoted attempted the Clark court general applicability].) means of the with words Here, course, judiciary Legislature resurrect what the adopt to the rule cannot anew. statutory elaborating upon from precludes has Evidence Code the courts interred. “[T]he Code, (Recommendation Proposing an Evidence su relating privilege. law of scheme” to the comment, Code, Com. Evid. pra, Rep., supra, Law Com. Cal. Law Revision 1 Cal. Revision fortiori, 911, subverting 160.) precludes altogether. the scheme A it them from § recognize I that Clark was disapproved forthwith. decided The Clark statement should be fact, however, only year urges not “The freshness error ago. action and hesitation. That entitled, practice but also only deprives respect long-established which is it of the to once, practices . . . be before laws opportunity that the correction seized counsels embody (1989) 490 adjusted (South v. Gathers U.S. have been it.” Carolina Scalia, J.).) (dis. opn. of L.Ed.2d 109 S.Ct. 2207] sound, unfortunately mis opinion Justice Broussard Although dissenting most of his is majority section 1024 much as do. construes statutory in this are to the Evidence Code. opinion All citations victim, or (b) necessary, disclosure not itself but has “triggered” decision to warn the victim. I with the first of this therapist’s agree part which is section 1024 But that is all it holding, says. says. what Extending section disclosure of communications when that is not and permit never was necessary to the victim amends the statute to reach a protect result contrary to the intent of the drafters and the enacting Legislature. take majority reject the extreme pains advanced interpretations defendant and amicus curiae—that section 1024 does not at trial apply dead, when the victim is or that it only undertaken applies proceedings for the benefit of the never patient—but consider that the statute should be words, communication applied according its to exclude a from the privi- only if its lege disclosure is or was “necessary to prevent threatened danger.” (§ 1024.) case,

In the present the trial court ruled that defendant’s could therapists reveal only they what told Linda Smith murder (the they when victim) warned her of but also danger, statements made by defendant thera- during which py they had not disclosed to Smith. The record here shows that the believed therapists defendant was and warned Smith dangerous, that she was in But danger. they did not reveal defendant anything had told them and during therapy, the prosecution never asserted that such disclosure was necessary to protect Smith. under the Consequently, and language purpose of section defendant’s communications to his their therapists retained privileged character and should not have been admitted into I evidence. conclude that error, the trial court’s ruling was that the testimony as to inadmissible, nondisclosed that, statements was and in view of the slim evidence supporting premeditation, the erroneous admission of this evi- dence was prejudicial.

I trial, Prior to the prosecutor a motion brought to determine competency witnesses, in which he asked the court to determine whether the testimo- ny of the therapists would be admissible under the so-called dangerous patient exception (§ to the 1024) psychotherapist-patient Defense privilege. counsel appeared and asserted the on behalf of privilege his client.

The court examined the in camera. Dr. therapists Judith Hamilton tes- tified that defendant told her that when he had a headache or had been alcohol, drinking he was afraid that he would lose control hurt and Linda Smith. statements, Based on those alcohol, defendant’s use of and drugs and violence, his past record of Hamilton decided to warn Smith. Hamilton telephoned Smith and told her that she was in “a dangerous situation.” Smith “I replied, know that. I stay with him I’m because lonely and because had several conversa- if I further kill me left.” Hamilton and Smith

he’d not, did tions, Hamilton defendant’s mostly hospitalization. concerning however, during defendant had made communication any disclose to Smith therapy. auditory he had testified said

Dr. Bellenden Hutcheson that defendant stays away He added he him to kill. hallucinations which commanded did not he someone. Hutcheson knives and because hurt might from guns Smith, himself, how- so. but relied on Hamilton do to warn Smith plan had ever, Hutcheson that the medications called Hutcheson to complain drowsy; to be causing for headaches were defendant defendant’s prescribed and that she was in a difficult in that conversation Smith told Hutcheson said, situation, Hutcheson “You have unable to leave. but was dangerous there,” an Smith get how to out of and recommended that find out get Boutleete, had her previ- Dr. who counseled therapist with appointment Hamilton, Hutcheson, confidential any like did not disclose Smith ously. defendant and himself. communication between that the the court ruled At the conclusion of the camera proceeding, privilege: items were not following protected psychotherapist-patient Smith; Linda The substance All conversations with b. therapists] “a. [of Hamil- Linda Drs. all between Smith and Hutcheson conversations threats; c. as to the issue of they warnings Impressions ton relate the de- such d. Statements made which diagnoses warnings; prompted by and Drs. himself led to conclusions impressions, diagnosis fendant which the Defense counsel raised Hutcheson and Hamilton to warn the victim.”2 dissent, only I the namely, provided in this that statute specific point urge threatened necessary prevent “when the disclosure is the for disclosure however, court, “I the statute could be read The know danger.” replied, I means.” the but don’t think that’s what the statute only warning, require testimony. testified accord with their camera At trial the therapists but testimony, Defendant of the not on the objected ground portions ruling.3 which both sides assumed was settled the pretrial privilege, in the trial (a) I of items admissibility (b) have no with the problem order, victim Linda Smith and court the conversations between attorney the thera specifically district to interview 2The trial court’s order authorized the however, necessarily ruling, implied matters were pists on the listed matters. The that such attorney therapists privileged may since not ask the to disclose privileged, the district testimony ruling signified therapists’ on such mat The court’s thus that the communications. they of the shows understood the parties ters would be admissible. The conduct at trial ruling psychotherapist-patient privilege in this case for all defining scope as one including admissibility evidence. purposes, Morris, v. agree majority pretrial ruling People 3I with the this is reviewable under 152, 720, ante, 949], page Cal.Rptr. though judge 807 P.2d even who ren 190 [279 ruling ultimately judge was not the who tried the case. dered

611 of such v. therapists. admissibility conversations was decided People 583, 399, Clark 50 Cal.3d 789 P.2d But I (1990) Cal.Rptr. [268 127]. submit that the court erred in items holding (c) (d) admissible. Given case, the balance of evidence in this the error was prejudicial.4

II My analysis of the of section 1024 meaning statutory with the begins “ ” ‘The court language. turns first to the words themselves for the answer.’ 711, v. (Brown Kelly Broadcasting Co. 48 Cal.3d (1989) Cal.Rptr. [257 708, 771 P.2d 406]; Delaney Court Superior Cal.3d 753, 789 P.2d “If Cal.Rptr. 934].) is clear language and unambigu- ous there is no need for . . construction . .” (Lungren v. Deukmejian 755 P.2d 299].)

All confidential communications between a and his patient are therapist privileged (§ unless 1014) they lose that character virtue of some specific in the exception Evidence Code. The only relevant exception here is section 1024, which states: “There is no privilege under this article if the psycho- has therapist reasonable cause to believe that the is in such patient mental or emotional condition as to be dangerous to himself or to the or person of another property and that disclosure of the communication is necessary prevent threatened danger.” Under this each language, communica- tion between the and the therapist patient5 retains its status until privileged two First, conditions are met. must have therapist reasonable cause to believe the patient is in such mental or emotional condition as to be danger- Second, ous to himself or to others. must have therapist reasonable cause to believe that disclosure of the communication is necessary to pre- vent the threatened danger.

The second condition is at issue here. There is no ambiguity concerning its requirements. A communication is privileged unless its disclosure is majority 4The approach this issue in They a circuitous fashion. first assert that defendant waived the psychotherapist-patient privilege by putting They his mental state in issue. then recognize defendant’s claim by that this waiver was coerced pretrial the court’s ruling on the scope dangerous of the patient exception. majority correct, reply The ruling that this so the waiver was ruling. They coerced an erroneous then discuss the merits of that rul ing length. majority’s waiver, Thus the ultimately conclusion may rests not on the which have product been the pretrial of the ruling, but on the ruling correctness of that itself. All unnecessarily this complicates the matter. simpler—and It would be amount the thing—to say same that the issue pretrial of the ruling privilege on properly is before us on appeal subsequent because acts of defense response counsel in ruling to that did not waive the issue. 5 The term “communication” as used in section 1024 throughout psychotherapist- the patient privilege refers to the communication between the therapist and patient (see the 1014), communication, not to any, if § between the therapist and the victim. its A communication does not lose danger. threatened necessary prevent has to be- because reasonable cause merely therapist status privileged may because the communication lieve that the or patient dangerous, he or should take some conclusion that she contribute to therapist’s not itself as that action does long require action to prevent danger—so disclosure of the communication question.

The here that when Dr. Hamilton called Linda Smith record revealed situation, “I told she know.” Smith her she was a dangerous replied, that she knew she was in dan- later called Dr. Hutcheson and volunteered circumstances, reasonable cause to be Under these neither had ger. therapist believe or he further confidential communications divulge that she must Smith, statute, meaning and neither did so.6 Thus under the plain none of lost their status. privileged those communications

Ill The of 1024 is history section foregoing interpretation supported and the cases that of privilege applying psychotherapist-patient privilege.

The Revision Commission comment to section which creates Law broad psychotherapist-patient privilege, explained privilege “[a] Psychoanaly- psychiatrists should to both and certified psychologists. apply of sis and are the fullest revelation the most psychotherapy dependent upon on intimate and details life. Research mental embarrassing patient’s re- or emotional similar disclosure. Unless a or problems patient requires be search is assured that such information can and will held subject confidence, he make utmost will be reluctant to the full disclosure upon which and treatment or and accurate research diagnosis complete depends, received several reliable reports Law Revision Commission has [fl] from in need of treatment sometimes refuse such treatment persons psychia- be confidentiality trists of their communications cannot assured because under law. these are disturbed and consti- Many persons seriously existing community.” (Italics added.) tute threats to other in the The Law persons Commission in the Revision on to that the “difference explain went scope the two as to the privilege compared privileges psychotherapist-patient [the any therapists Defendant contends that the did not disclose confidential communication 1012, communication, majority reply Smith. defined in “in The that a as section includes by patient” Arguably an the “a diagnosis.” formation obtained examination of and the thera danger a pist’s that a to Smith is “communication” within the conclusion defendant was however, meaning majority acknowledge, of that section. The that the fact one commu by operation deprive nication of section 1024 does not other confidential nonprivileged is ante, 554.) (Maj. opn., privilege. of the communications

613 in criminal proceedings] does not apply which privilege, physician-patient advised that Commission has been the Law Revision based on the fact that because he will not solely denied a patient often is proper psychotherapy be in a may that the latter compelled a freely talk to psychotherapist for fear added.) he has been told.” (Italics to reveal what criminal proceeding Revision Commission com- I certain of the Law have emphasized parts intended to was apply—indeed to make it clear that the privilege ments a to other the who is “threat persons written specifically—toprotect patient Thus the in a criminal community” proceeding. the and disclosure fears the to that should privilege the defining privilege exceptions provisions to seek dangerous persons psycho- be interpreted encourage potentially disclosure of their them with the against therapy providing protection criminal confidences subsequent proceedings.7 the reason for the danger- The Law Revision Commission also explained ous 1024: “it is action of section essential patient exception appropriate be taken if the becomes convinced the course of during psychotherapist and the treatment that the is menace to himself or others patient patient necessary refuses to to make the disclosure permit psychotherapist words, the threatened In other prevent danger.” primary purpose section 1024 is to enable to disclose communications when therapist necessary, thinks disclosure is not to to make therapist compel therapist he unnecessary. beyond disclosures or she considers To disclosure require the necessities of the case would be inconsistent with the legislative purpose. of the served light purposes psychotherapist-patient privilege, consistently any cases have held that doubt should be resolved in favor of the privilege. statutory ‘is to be psychotherapist-patient privilege “[T]he ” (In liberally construed in favor of the re 2 Cal.3d (1970) patient.’ Lifschutz 415, 829, 557, 44 467 P.2d A.L.R.3d Roberts v. Cal.Rptr. 1]; [85 330, 309, Court Superior (1973) 9 Cal.3d P.2d Cal.Rptr. 309].) [107 disclosure, when balance favor of constitutional concerns tips “[E]ven a strict of the disclosure.” v. require circumscription scope (Cutter Brownbridge Thus 545].) Cal.App.3d Cal.Rptr. the courts an narrowly any have to construe to the “obligation exception 7 majority reject discourage interpretation potentially danger their will concerns that persons ground Regents ous seeking counseling from mental health on the that in Tarasoff 425, 440, University 551 P.2d 17 Cal.3d footnote of California they 1166], predictions speculative. 83 A.L.R.3d said such are And so have we are—we they no data. But it is clear that were a matter of concern to the Law Revision Commission Legislature. narrowly Legislature and the If the drafted section 1024 because of concern its exemption persons seeking for the therapy, risk that broad would deter from we have no Legislature’s “speculative” adopt interpretation warrant to brand the concern an con trary to its intent. only must such an we privilege: apply exception psychotherapist-patient Stritzing within its ambit.” (People case falls when the patient’s squarely 431, 668 P.2d 738].) er 34 Cal.3d the California, Cal.3d University v. Regents Tarasoff of of ato respect dangerous a duties with discussing case leading therapist’s a bring of victim could death wrongful the heirs a murder held that patient, to warn the victim. this reaching failed therapists action the who against result, coun as the “balancing we the Evidence Code provisions described of to a “broad rule tervailing by establishing privilege protect concerns” in sec and patient psychotherapist” confidential communications between 1024. and in section (17 tion 1014 a limited exception” and “specific and confidential We then said: “We realize that the open at pp. 440-441.) to dialogue encourages patients express character of psychotherapeutic violence, Certainly are ever a therapist threats of few which executed. threats; to reveal such disclosures routinely such encouraged should be the with his and with seriously patient’s therapist could disrupt relationship the to his contrary, obligation To the therapist’s the threatened. persons he not a confidence unless such disclosure is that disclose requires patient others, discreetly, even he do so necessary avert and then that danger in a would the of his to the fullest patient fashion that preserve privacy 441.)8 of the threatened danger.” (P. extent with prevention compatible They can a fulfill under the view? obligation majority’s How this therapist needs carefully only hold that if the tells the victim what she therapist even act safety—that to know for she is the therapist her own danger—by destroyed has client’s as to all which led to privilege communications client that a was neces warning the conclusion that the dangerous, sary. to Welfare Tarasoff, (s) added subdivision

Subsequent Legislature involuntarily records of and Institutions Code section which relates to in the patient, committed mental It patients. provides “[w]hen danger or her a serious of violence presents opinion psychotherapist, victims, any or then of the information or reasonably foreseeable victim records in this be released to that or may person persons section specified is need and to law as the determines agencies psychotherapist enforcement for the of that or Section confirms persons.” ed protections person for protection limit to that which is needed intent to disclosure legislative victim. majority language describes the com quoted only maintain that the from Tarasoff duty victim. it therapist patient potential law to his her and to the I believe was mon or Legislature privilege also intended the balance struck between and disclo to describe sure, Tarasojf completely court believed was consistent with the common balance that law rule.

615 Clark, 50 recent in v. declared Our decision People to maintain the duty that has a professional psychotherapist “[a] him his by during character of communications made to patient confidential to disclose necessary the course of the but when it relationship, must do so. confidential information to avert to others the danger therapist the unnecessary . . . exists to [Citing prevent Tarasoff.] [Section 1014] disclosure of statements made in confidence in the course of privileged ... If communication with a to facilitate treatment. thereby therapist the that statements have been revealed to third a communication persons however, is not itself they are no 619- privileged, longer confidential.”(Pp. 620.) Again carefully we find section to statements language limiting disclose; which it is in Clark necessary would disclosure nothing support of statements which the did not reveal and did not need to reveal therapist to the victim.

The Court of decisions cited do not detract from Appeal majority turn foregoing analysis, but on other issues. In v. Gomez (1982) People Cal.App.3d Cal.Rptr. 155], defendant at trial that argued section 1024 was since the victim was dead and disclosure inapplicable would no longer serve the purpose The Court of preventing danger. held if Appeal that disclosure was necessary when the communications were disclosed in an effort to the communications prevent danger, were I under privileged. agree; section once circumstances disclo- require sure to prevent danger, communications which have been disclosed lose character, their privileged and do not later regain status. But nothing Gomez removes the from privilege communications which were not dis- closed and did not need to be disclosed to prevent danger.

Mavroudis Superior Court Cal.App.3d 724], concerned in a civil discovery suit failure alleging to warn. The court held that if the preliminary facts section 1024 required by were present fails, time of the injury, the claim of even time of privilege though by trial it was too late to prevent The court then established a danger. for in procedure camera of the review records to determine psychiatric what disclosed, should have been and thus is subject discovery. in that Nothing case that the suggests plaintiff entitled to discover confidential commu- nications whose disclosure was never necessary prevent danger. sum, a communication does not lose its because it influenced privilege to take therapist some action other than disclosure that communication to prevent danger. Under the of section language Law Revision section, Commission comments to that and the cases subsequent and enact- ments, a communication loses the protection psychotherapist patient only when privilege disclosure of that communication is itself necessary to therapy during defendant’s communications Since none of danger. prevent Smith, offered no showing and the prosecution disclosed to victim were the trial court erred necessary danger, ever prevent disclosure was such psychothera- were not protected that these communications ruling pist-patient privilege.

IV thera- during statements defendant’s testimony concerning Without the extremely scanty. is killing premeditated the evidence that defendant py, killed Smith was briefly: (1) probably be summarized That evidence can after she belongings of the victim’s hammer; sold some (2) defendant with car; her of stealing defendant died; the victim once (3) wrongly suspected in danger.9 that she was told the victim and therapists that defendant argued much. The very proves prosecutor None of this of a quarrel, the tool box anticipation have taken a hammer from might after he to it or, get went to the toolbox that defendant inconsistently, on the merely conjecture prosecu- are both hypotheses became angry—but tool, hammer, gun instead of a common household The use of a tor’s part. kill, The absence of premeditation. to suggests or other weapon designed adds nothing. after the killing defendant hid the hammer proof motive, and Smith’s suspicion on defendant’s thefts The evidence of based weak, sustain a thefts, finding alone will not is and of motive proof of those 15, 27 70 Cal.2d Anderson (People of premeditation. shows not that sought therapy P.2d The fact that defendant 942].) kill, kill and he would impulsively to but that he feared

he was planning fully The therapists’ warning that from happening. sought help prevent disturbed, violent with was a person the fact that defendant consistent with i.e., control, to commit an likely unpremed- the kind of person poor impulse itated killing. to the thera- communications

The evidence of defendant’s undisclosed case. As the prosecutor of the prosecution added pists greatly weight said, himself to his says psychiatrist that Mr. Wharton things “the [are] explained The prosecutor than the other evidence. much more important” “Now, homicide many how jury: to the of this evidence importance makes two a defendant have a statement you you cases do have where you’re trying prove premeditation ahead of time when weeks that the evidence showed Attorney argues support premeditation of General also intent to kill and killing, the victim. But hitting, perhaps he that defendant knew was A lack of in unpremeditated murder. killing fully consistent with knowledge that one is are malice, reducing manslaughter. the crime knowledge suggest or would absence tent have a case where someone you you times do think many deliberation? How time, shrink, they’re hurting thinking tells his two weeks ahead you and deliberation Premeditation they murdering? requires end person up Well, 27th he at least from the you’re think about what doing. to have [s/c] evidence of . . . is strong, strong premedita- about it. thinking [T]his it, has a along about knows he problem tion and deliberation. He’s thinking lines, ahead of time.” these he’s about it two weeks thinking communications, fully The evidence of exploited pros- defendant’s ecutor, have been a weak case what otherwise would greatly strengthened for based on Without such evidence premeditation—one largely conjecture. I reasonably believe it that the would not have found jury probable defendant committed a murder. the test of prejudice premeditated Applying P.2d I 243], Watson would People murder, reverse the defendant of first judgment finding guilty degree remand the case for a new trial.

Kennard, J., concurred. petition July Wharton for a was denied respondent rehearing Mosk, J., and the was modified to read as above. opinion printed Broussard, J., Kennard, J., were of the that the should opinion petition be granted. notes on to discuss (x) possible responses two instances, an or an jury. express received from the In all there was either of defendant’s counsel. implied presence given waiver

Case Details

Case Name: People v. Wharton

Court Name: California Supreme Court

Date Published: Apr 29, 1991

Citation: 809 P.2d 290

Docket Number: S004769

Court Abbreviation: Cal.