*1 22388. Feb. No. [Crim. 1988.] PEOPLE,

THE Plaintiff Respondent, HENDRICKS, and Appellant. M. Defendant EDGAR *5 Counsel Court,

Marcus S. under Topel, by William M. appointment Supreme Goodman, Plumhoff, Ray H. Lynne S. Coffin and Marianne D. Bachers for Defendant and Appellant. White, General,

John K. Van Attorney de Kamp, Steve Chief Assistant General, Howell, Attorney Mark A. F. Brady, Thomas Gloria DeHart and Kirk, General, Plaintiff and Charles R. B. for Attorneys Deputy Respondent.

Opinion Code, subd.

LUCAS, (b); (Pen. C. J.This is an automatic appeal § statutory indicated) further references are this code unless otherwise (§ law 190.1 et from a under 1978 death judgment of death should be judgment As we shall we seq.). conclude explain, entirety. affirmed in its

Defendant James Parmer and Charleston charged murdering was with (§ 211) men Haynes. also with the two (§ 187.) charged robbing He was Four circumstances (§ 459). with Parmer’s residence special burglarizing 190.2, robbery (§ were murder Parmer subd. alleged: (1) felony for the 190.2, for Parmer subd. (a)(17)(i)); (2) felony burglary (§ murder (3) Haynes robbery; (4) murder (a)(17)(vii)); felony multiple for the 190.2, case, (§ murder v. Hendricks (a)(3)). (In subd. a related 43 Cal.3d 584 defendant’s 1350], 737 P.2d we reviewed Cal.Rptr. murders, but revers convictions two additional the convictions affirming the death ing penalty.)

In the summer “hustler”—a male working of 1980 defendant was as a In the course of his Angeles. men—in San Francisco and Los prostitute trade he with would also rob his He had a sexual encounter paid customers. N. at with Joseph the San Francisco the latter shared victim residence Parmer, days who also homosexual. A later returned few defendant the residence range, and broke in. He shot Parmer six times at point-blank *6 the last three He then lay times as Parmer on the floor. took unconscious checkbook, various items and fled. He had including subsequently Parmer’s a sexual victim in the latter’s San Francisco paid Haynes encounter with He times the last three Haynes range, hotel room. five at point-blank shot Haynes times as took items lay including on a He then various prone bed. checkbook, Haynes’s and fled. jury except

The defendant on all counts guilty charged found as theft, a robbery Haynes; guilty of him of grand as to count it found lesser included The all the circumstance offense. also found special true, based on the to be with the allegations exception allegation robbery Haynes. of

In in the sum- evidence that prosecution presented phase mer of 1980 Carter James Burchell— Harry defendant also murdered and who both Angeles, Virginia were homosexuals—in Los Hernandez and Oakland. The defense that defendant had introduced evidence to show of suffered the victim neglect early years, and abuse from his was homosexual as a stable and rape responsible defendant had a teenager; son; relationship young with a woman had as a father to her acted 1980, however, sexually the summer of been after the son had woman’s abused other boys and the woman defend- relationship, had ended their ant testimony lost control of a himself. The defense also presented Carson, Dr. Linda psychologist, who in substance that defendant opined had killed out of an rage”—i.e., impulse “homosexual under irresistible from springing fear that he was fact homosexual. rebuttal the prosecu- Reus, tion a psychiatrist, called Dr. disagreed Dr. Victor who Carson’s with opinion. He stated that defendant had the deliber- capacity premeditate, ate, malice, harbor and form the kill. specific intents steal and death, fixed the penalty at was entered accord- judgment ingly.

I

Guilt Phase Contentions Defendant raises number relating contentions the issue of guilt; none, show, we shall is meritorious.

A. The Checkbooks He first claims the court erred in bar the failing to introduction ¿heckbooks Haynes’s Parmer’s and as fruits of allegedly his unlawful arrest. err, however, Even if the court did the error beyond harmless plainly arrest, reasonable doubt. Subsequent to the challenged defendant fled from rearrested, state. After he was he gave statements to the tape-recorded police. statements, In these which played jury, were he admitted taking checkbooks.

B. Cross-examination Dr. Carson Carson,

Defendant next contends the Dr. court erred in ruling the defense psychologist, would be subject to cross-examination on the *7 Carter, Burchell, and Hernandez if homicides she testified. We disagree.

After the prosecution rested its in the case defense counsel guilt phase, informed the court call on testimony would Dr. Carson to give defendant’s state of mind at killings. the time of the an- The prosecutor defense, if nounced that defendant tendered a mental he would cross-exam- 642 Defense counsel homicides. uncharged

ine the on the three psychologist receive and in camera to a hearing The court then conducted objected. would that Dr. Carson established evaluate counsel’s offer of Counsel proof. in the rage” acted out of “homosexual testify in substance that defendant tendered defendant Haynes Parmer and homicides. The court ruled would testimony, the prosecution mental defense Dr. Carson’s through for impeachment homicides uncharged entitled to cross-examine her on the evidence. putting the defense rested without purposes. Thereupon an testimony expert be used to may impeach Other-crimes evidence 467, 356, (See 373-376 Cal.Rptr. v. 71 Cal.2d Nye (1969) witness. People [78 225 610-613 v. 395]; (1964) Cal.App.2d 455 P.2d Jones People [37 more be cross-examined may Because an witness Cal.Rptr. 454].) expert witness, discre has broad laya the court extensively and than searchingly at Nye, v. supra, admit (See People tion such evidence for impeachment. Jones, 610-613.) 374-375; pp. v. at People supra, pp. . . . Dr. Carson’s “opinion here. Because

No abuse of discretion appears prosecu- the prosecution,” was at odds with the evidence introduced 71 Cal.2d Nye, supra, it. (People was entitled to to discredit” “attempt tor on the basis by arguing at Defendant seeks to avoid this conclusion p. 376.) 189], 695 P.2d Cal.Rptr. v. Coleman 38 Cal.3d 69 (1985) [211 unduly have been barred that use of the homicides should uncharged both more probative But the evidence here to be appears prejudicial. statements “[a]ccusatory mentally less than the ill woman’s prejudicial ” 93.) (Id. in Coleman. ‘from the which were at issue grave,’ C. Failure to Instruct three instruc refused improperly

Defendant further contends the court standard instruction tions. The first was a modification proposed para the addition of a defining robbery (CALJIC 9.10)—specifically No. if the of his property intent another deprive the effect there is no graph In his tape- to such property. taker that he has a good right has faith belief statements, into the residence he had broken recorded defendant claimed assertedly money each to collect and Parmer order by Joseph shared N. on People He relies primarily him as a prostitute. owed for his services 511, 421 is 703], but the case P.2d (1967) Cal.Rptr. Butler Cal.2d on prosti was based “right” admitted his Defendant distinguishable. tution, is The claim-of- illegal. prostitution conceded he knew impliedly activities. notoriously illegal claims based on right inapplicable defense 666, 743 Cal.Rptr. 1181-1182 v. Gates Cal.3d (People P.2d 301].) intent at which the the time instruction concerned

The second proposed defendant whether the a reasonable doubt formed: “If have to steal was

643 an Haynes they formed intent to steal from Mr. Parmer Mr. before and/or shot, were then that Mr. Mr. Haynes instructed Parmer and/or of, were not killed in the the crime of perpetration attempt perpetrate, In robbery.” this the court followed refusing charge correctly expressly the long may settled rule that an instruction that confuse the should 496, not be given. Strange (1882) they v. 61 Cal. (People 497.) Although had defense no opportunity, attempt counsel made to redraft the instruction. 256, on v. 60 Relying (1963) Whitehorn Cal.2d 264-265 Cal.Rptr. [32 199, 783], 383 P.2d defendant court to correct argues duty had styles what he problem” “cosmetic with the instruction. The 9.10, misses the The court CALJIC point. gave Nos. 8.21 and which cover the adequately issue of the time the formation the intent to steal. instruction, drafted, “merely Because the proposed even elabo properly upon instruction[s],” the general refusal to it was not error. give rate^] 633, 238, v. Anderson 64 (People (1966) Cal.2d 640-641 414 Cal.Rptr. [51 P.2d 366].)

The third proposed instruction involuntary manslaughter. involved It is of course the rule is court under no duty give requested instruction when there no is substantial evidence in v. support. (People 668, 84, Flannel (1979) 25 Cal.3d 684-685 603 P.2d Cal.Rptr. (plur. [160 1] opn.).) “Involuntary . . . manslaughter inherently kill an unintentional ing.” v. (People 193, (1977) Broussard 76 197 Cal.App.3d Cal.Rptr. [142 accord, (italics added); 414, People Germany (1974) Cal.App.3d 664] Cal.Rptr. 841].) established, As the physical evidence defendant shot Parmer six times at point-blank range, the last he lay three times as unconscious; the floor Haynes he shot five times at point-blank range, the last three times evidence, as he lay prone on the bed. of this light defendant’s self-serving tape-recorded statements an to kill denying intent Therefore, cannot be deemed substantial in character. not err the court did in refusing the involuntary manslaughter instruction.

D. Denial Mistrial

Defendant next contends the court erred his for a denying motion mistrial based on an outburst in court which he open he admitted six guilty when, of murders. may But a defendant heard to complain here, as such prejudice may have suffered resulted his own from voluntary (See People act. Harris 28 Cal.3d 951-953 [171 240], 623 P.2d Cal.Rptr. cert. den. 454 U.S. 882 L.Ed.2d S.Ct. 365].)

E. Photographs final

Defendant’s contention relating guilt phase is court erroneously admitted certain Haynes. Parmer photographs

644 the with 352 vests court The lacks merit. “Evidence Code section point its of evidence against discretion to the effect weigh prejudicial broad [such] 199, Cal.Rptr. value.” v. Pierce 24 Cal.3d 211 probative (People (1979) [155 657, P.2d No of The 91].) appears. “[p]hotographs 595 abuse discretion are manner in wounded which disclose the which [the] victim[s] [were] 25 Frierson (1979) ‘relevant on the of malice ....’” v. (People issue[ ] more, 142, 281, no 587].) they Cal.3d 171 599 P.2d And Cal.Rptr. less, exhibits. also many (See and indeed are than such perhaps shocking Hendricks, supra, 594-595.) 43 Cal.3d People

II Special Contentions Circumstances Defendant each of three circumstance special contends that the robbery felony-murder-burglary (Parm findings—felony-murder (Parmer), to er), the failed and murder—must be vacated because court multiple only if instruct it find true jury allegations could each of defendant to kill. rejected. acted with intent must be point Anderson 43 Cal.3d Cal.Rptr. 1306], we to kill in connec P.2d held that the court must instruct intent tion when felony-murder with circumstances multiple-murder special was an there is evidence from which the find that the defendant could course, case, defendant rather than actual killer. In this accomplice to an instruction admitted was the actual killer. He not entitled was thus on intent to kill.

In an claimed conjunction raised with the instructional errors, defendant contends that the was insufficient support evidence circumstances. felony-murder-burglary felony-murder-robbery special that, facts, have defendant was already We determined these under defense, and that the special claim-of-right entitled to instruction on his covered (CALJIC 9.10) adequately standarized instructions Nos. 8.21 and 642- (Ante, pp. of the of the intent to steal. issue time formation Stone, immunity, Annette under a 643.) paramour, grant Defendant’s room, their motel left prior testified Parmer murder defendant head, knock find a him over announcing going faggot, “[h]e checkbook; Stone cashed money.” his He later with take returned Parmer’s $255 over victim’s turning proceeds check for forging signature, robbery of Parmer defendant defendant. The found guilty sufficient evidence We there was burglary his residence. conclude that present felony-murder findings circumstance special support case.

III

Penalty Phase Contentions Defendant raises a number of relating issues of question penalty. None, shall we has merit. explain,

A. Exclusion Jurors Prospective Solia,

Defendant contends Forentino Deborah prospective jurors Wertheim, Mary Reyna, and Eileen Brown were excused for improperly cause because of their views on the death The record shows other penalty. wise. 776,

In v. Illinois Witherspoon (1968) 391 U.S. 510 L.Ed.2d 88 S.Ct. [20 1770], the United juror States Court that a Supreme implied prospective unless, here, could not be excused for cause as relevant he made it “unmis- takably clear” that he “automatically would vote against imposition capital punishment without regard might evidence that be developed (Id. 522, at trial of the . . case . .” at fn. 21 at italics p. p. 785], L.Ed.2d [20 841, original.) Wainwright v. Witt 469 412 (1985) U.S. L.Ed.2d [83 however, 105 S.Ct. 844], the court reconsidered and declared Witherspoon proper standard was “whether the views [prospective] juror’s would ‘prevent substantially his as a impair performance of duties ” juror in accordance with his 424 instructions and his oath.’ at (Id. [83 L.Ed.2d at pp. 851-852].) We the Witt adopted standard Ghent People 739, 82, 43 Cal.3d 767 739 P.2d Cal.Rptr. 1250]. standard,

Even under the Witherspoon the exclusions here were It proper. that, from the initial plain face of the record although responses their Wertheim, were somewhat ambiguous, challenged jurors (Solis, Reyna, and Brown) ultimately unmistakably they made it clear would automatical- ly vote not to impose the death penalty. reject- must therefore be point ed.

B. Other Crimes Evidence introduction,

Defendant contends that to section pursuant 190.3, subdivision (b), of other-crimes the murders evidence—specifically, Carter, Burchell, and Hernandez—denied him due of law. In process 144, 184, v. Balderas (1985) 41 Cal.3d 204-206 711 Cal.Rptr. however, P.2d 480], we rejected the identical claim. Because defendant us no presents with reason to from our his holding, reject we must depart claim as well.

C. Photographs phase admission into evidence at Defendant contends that the error. The photographs of certain constituted photographs prejudicial 115, on Virginia of the clothes depicts position issue are exhibit which Hernandez’s face body; Hernandez’s which reveals a view of exhibit body Harry death; on the and exhibits which show wounds relevant to that exhibits 120 and Carter. Defendant concedes however, have been exclud- they the issue of He should penalty. argues, *11 120 352: and unduly ed as section exhibits prejudicial under Evidence Code 122, he says, gruesome; are too exhibit 117 cumulative supposedly Further, not he 115 does other in evidence. that exhibit photographs argues asserts, moved body, had been accurately depict crime scene—the we is irrelevant. As shall before the was taken—and therefore photograph appear. error does not explain, prejudicial 122, his

As to 120 has carried exhibits and we doubt that defendant weigh burden of abused its “broad discretion to showing the court (People effect value” against evidence its prejudicial probative [such] Pierce, 24 into 211) Cal.3d it admitted these supra, photographs when concedes, is and evidence. Each of the as defendant relevant photographs, 122, although none exhibits appears unduly prejudicial: view, shocking many seem no more than similar pleasant photographs, admits, merely exhibit as is not but gruesome defendant himself of other in evidence. duplicative photographs showing We also has his burden doubt that defendant carried adequately testimony that exhibit is irrelevant. The record contains from differed representation how the in the explaining photograph (See Isby 30 Cal.2d original crime scene its state. 405].) 891-892 P.2d four photo-

But if err all even the court did admitting here, was prejudicial. issue we error graphs at cannot conclude that whole, these as a it seems clear even Viewing penalty phase the same. had would have been not been admitted the outcome photographs Testimony D. Dr. Reus’s testimony was without of Dr. Reus’s portion

Defendant contends that necessary The facts and should have been stricken. foundation proper resolve this claim are follows. Carson, defend- testimony concerning

Dr. gave the defense psychologist, then killings. time Defendant during ant’s mental state relevant to colloquy. engaged following took the stand and Hendricks, “By you Mr. were Q. when [defense counsel]: Mr. Berman no, you asked if the care the lives of said about about other people [szc] now, you you July, about or are about talking talking August, Septem- year? ber last a,

“A. I At that time I didn’t care about no one at all. was at particular I is a rage, more or less. were—I didn’t care. Lee’s Market on Revere Street was, one, I you case don’t know of at all. The sixth I and said that six got up cases. That is the sixth one there. over, when this is like to talk to the about

“Q. Edgar, police would that one. Yes,

“A. whatever. life, now, “Q. Do care about human life? other people’s “A. I care a deal about human life. I care a great deal about great people *12 now.”

The then prosecutor proceeded to cross-examine on the Lee’s defendant Market murder.

“By us, Hendricks, Mr. Munson: Q. you you Are Mr. that killed telling a person Lee’s Market on Revere Street?

A“A. store. grocery

“Q. Is that in the City County and of San Francisco?

“A. In Bayview Area. When

“Q. was this?

“A. Columbus Day.

“Q. year? Of what

“A. ’80 What

“Q. happened? “A. Me and some guy, mine—you say—went other friend of want to into them, the store and robbed guy guy shot the then—didn’t want to shoot the now, but—-just why the reason I’m letting all this out I know I am going get anyway the death so I clear my own conscience.

“Q. you Do feel that that decision should be left the ladies and up to sir, gentlemen of the jury you, rather than of what penalty? Oh,

“A. yes. Market, but “Q. say You that didn’t want to shoot the man at Lee’s why did shoot him?

“A. my He tried to grab gun.” Dr. Carson. testimony called Dr. Reus to rebut the

The following colloquy occurred. “By Doctor, a just for Q. leaving aside the sexual aspect Mr. Munson: stand,

moment, your the defendant out of and he testified presence took behalf, testimony, in his to all of us that part own of his he indicated was He another Day on Columbus 1980. said he walked in with engaged a store. I believe he said on Revere Street. chap grocery it was event, City County it in the of San He armed with was Francisco. was said, said, T ‘The reached gun. grocer.’ grocer He want to rob the He [fl] true, Now, indicate, him.’ if gun and I shot does these facts [fl] crime, does that indicate an on the defendant to ability part plan arm deadly himself with a the crime? weapon, execute Well, that, certainly only

“A. would that is the report indicate hand, that, yes.” information at of doing individual is capable testimony quoted Defendant claims that of Dr. Reus above argues without stricken. He foundation and should have been proper as follows: it is ask a hypothetical substance an witness improper expert *13 admissible, evidence; question that assumes facts not in be the evidence to doubt; beyond the other crime must crime a reasonable defend- prove that however, ant’s the Lee’s Market testimony, does not his prove guilt hence, beyond doubt; murder for the improper prosecu- reasonable it was therefore, have did; tor to should ask the Dr. Reus’s answer question rejected. been stricken. The claim must be with, To is not true. premises at least one of crucial begin defendant’s crime, the other to It is not the case that simply “evidence admissible, v. (People must doubt.” prove beyond such crime a reasonable & Fricke 826], Holliman 274 94 (1969) Cal.Rptr. citing Cal.App.2d [78 Alarcon, of Other Criminal of Proof (6th ed.) Degree Cal. Evidence Offenses, 293.) is, of event, It

In threshold. rejected the claim must be at the course, admissibility of to the relating “the rule that general questions absence of a specific evidence not be on in the appeal will reviewed urged to be timely sought in the trial court on the objection ground 542, 548 Rogers Cal.Rptr. v. 21 appeal.” (People (1978) Cal.3d 649 Here, 1048], objection P.2d and cases defense counsel made no cited.) whatever. merit. What he argument contrary Defendant’s without merely forth as an his puts objection on the of defense counsel part request to continue in he called defend- closing argument the face of what ant’s “bombshell” confession.

E. Prosecutorial Misconduct

Defendant in mis engaged contends that the prosecutor prejudicial in conduct violation Murtishaw principles Cal.3d 733 446], 631 P.2d when his rebuttal to Cal.Rptr. defense counsel’s closing he made a comment to the issue of going “further dangerousness.”

During his closing argument defense counsel stated as follows: “If find that even system within the prison Edgar ability Hendricks has the life, repent and rehabilitate think you his albeit within the I prison system, life, should vote for and I think you have seen that Hendricks is Edgar himself, monster, about learning that he is not a that he learn his can from mistakes and make a better person of himself.” comment, response that state- following made the

ment. said if you believe that the state system prison “[Mr. Berman] him, life, could rehabilitate ability and he has the to rehabilitate his be a might factor . . indicating punishment should be .You given. have to weigh consider if he what would if he’s in goes prison happen a cell somebody him for approaches gay sex or he’s in a cell with a person. It’s 3:00 in the morning guard and the is clear the corridor. down Now, all the guards and the wardens something aren’t going prevent terrible from happening.”

Defendant claims that in making the comment above the quoted prosecu- tor engaged prejudicial misconduct violation of the of People principles Murtishaw, 767-774, supra, Cal.3d at pages which holds that expert predictions of “future dangerousness” generally inadmissible during *14 penalty of a phase trial. capital The claim must be rejected.

Initially, it appears comment not prosecutor’s improper. was (See 247, 794, v. People 41 Davenport (1985) Cal.3d 288 710 Cal.Rptr. [221 P.2d 861].) As we in explained Murtishaw Davenport, was concerned with limiting of expert predictions on dangerousness, prosecutorial argument Here, that topic. the prosecutor made a brief response defense counsel’s comment about defendant’s rehabilitative and unlike the errone potential, Murtishaw, ously testimony admitted expert considered in which “was the principal prosecution penalty phase (29 evidence” Cal.3d at p.775),

650 aas of penalty phase comment here brief and—within the context 44 Miranda (1987) of minor v. whole—plainly significance. (See People 57, 594, 1127].) 110-111 744 P.2d Cal.3d Cal.Rptr. [241 First, event, de- review. In claim preserved is not properly Second, timely that a fendant made at trial. it is objection plain no whatever have objection explained and have cured the harm: as we admonition would above, minor According- clearly significance. the comment was brief and the claim ly, defendant have and objection must be deemed to waived 1, 27-34 cannot be v. Green 27 Cal.3d (1980) raised on appeal. (People [164 1, P.2d Cal.Rptr. 468].) 609 Sentencing

F. Instructions on Discretion Mitigating Evidence is section 190.3 sentencing Defendant contends that the formula of constitutionally compelled it ground unconstitutional on the that withdraws v. 40 Cal.3d jury. (1985) from the Brown sentencing People discretion 512, 538-544 on other 516], grounds 726 P.2d vacated Cal.Rptr. sub nom. L.Ed.2d Brown 479 U.S. California however, 837], rejected S.Ct. we that Defendant very presents contention. us no holding. with reason to reconsider our compelling closing

Defendant contends that certain in the prosecutor’s comments based argument, with of the instructions mandatory language combined 190.3, We cannot may section have misled the to his prejudice. agree. Brown, 538-544, we

Even in though supra, pages Cal.3d at unconstitutional, rejected the claim “We acknowl- that section 190.3 is statute, ‘shall in the words edge[d] language particular death,’ jury’s as to the sentence leave room for some confusion role,” “indeed, occasionally such reflected added confusion (Id. reason, very we 17.) before fn. records this court.” For that . . . directed that courts in future trials instruct “trial death penalty with jury as to the of its in accordance scope discretion and responsibility clear, however, set forth We made it (Ibid.) principles [Brown].” . verdicts validity “We no . of death pass[ed] judgment. upon re- . . we previously rendered without benefit . the instructions [then] be exam- prior We concluded that “Each such case must quire^].” (Ibid.) whether, context, may the sentencer ined on its own merits to determine sentencing of its been misled to defendant’s about the prejudice scope have (Ibid.) discretion under the 1978 law.” *15 1222 in v. 42 Cal.3d recently

As we Allen explained People [232 849, una- in was that the 729 P.2d “Our concern Brown Cal.Rptr. 115],

651 to ways jury in lead the statutory two interrelated might domed instruction responsibility. its discretion and misapprehend of nature

“First, about the might out the be confused jury we that pointed is a “weighing” word the As we observed: weighing process. ‘[T]he description. nature of by precise for a which is process incapable metaphor certainly not one which balancing connotes a mental but process, word imagi- the side of calls of factors on each counting for a mere mechanical “scale,” Each to of them. nary or the arbitrary assignment “weights” of appro- value he deems juror assign free to whatever moral sympathetic is to consider.’ and all various he is permitted to each of the factors priate [Citation.]

“Second, in Brown instruction's we were concerned that the unadorned con- . . . if ‘the trier of fact shall a sentence death phrase, impose [it] circum- the the aggravating outweigh mitigating cludes that circumstances it mislead the to the ultimate (italics added), jury question stances’ could as Although on to in to determining impose. called answer which sentence the juror understood a to determine quoted phrase (i) could be to require circum- whether ‘the circumstances the aggravating outweigh mitigating to regard juror’s appropriate stances’ without view as the personal sentence, out- and then a (ii) aggravation sentence of death impose is the weighs even if the does believe death mitigation juror not personally circumstances, Brown sentence all the in under we concluded appropriate to, not, that in that the statute was intended should interpreted the ‘By fashion. Instead we stated: “shall” directing death if it finds penalty aggravating “outweigh” mitigating, factors should not vote for any juror statute be understood require unless, death he decides penalty upon completion “weighing” process, death is the Thus under all the circumstances. appropriate penalty relevant jury, by weighing factors, under the various determines simply ” evidence, Cal.3d at (42 which case.’ appropriate particular pp. 1276-1277.) Ghent, 739, 777, “A recently

As we observed in 43 Cal.3d supra, Court, majority justices reviewing of the United upon States Supreme decision, our Brown in each necessity the record analyzing stressed instructions, whole, read case to determine whether taken conjunction arguments, with informed adequately the prosecutor’s all jury of its consider evidence responsibility mitigating Brown, 934, 538, case. L.Ed.2d (See supra, 479 U.S. [93 California 837, O’Connor, at by 107 S.Ct. L.Ed.2d opn. J.), (conc. 842] Brennan, by 107 S.Ct. at L.Ed.2d (dis. opn. J.), p. p. 850] Blackmun, We 107 S.Ct. at have undertak p. (dis. opn. J.).) 842] review, (see basis’ legitimate en there exists ‘no such we conclude *16 652 O’Connor, J., id., 943,

opn. 546 107 p. L.Ed.2d at S.Ct. at p. [93 842]) for that the believing jury was regarding sentencing misled its respon- sibilities.” We draw similar conclusion in the case. present

First, the although jury was instructed to former CAL- pursuant JIC No. 8.84.1 and its (k)” (see unadorned “factor language 858, Easley 309, 34 (1983) Cal.3d fn. 10 671 P.2d Cal.Rptr. 813]), arewe confident that a reasonable would not have been jury led to believe it Indeed, was to ignore defendant’s proffered character evidence. mitigating told jurors (k) “any factor allowed them to consider evidence at all in this record.” We therefore find no factor error. (k)

Nor does it appear jury that the was misled regarding the nature of the weighing process, the first aspect of our concern in Brown. The prosecu tor did not jury’s present weighing responsibility as mere “mechani cal” or “counting” His process. closing short and argument evidently was unimpassioned. (We set out pertinent portions ap pendix, post, p. 662.) He suggested that in undertaking weighing pro cess, jury . . “might. scale,” draw a line down like a list the aggravat ing other, circumstances on one side and the on the mitigating ones “make a of fact” finding as to whether the factors aggravating “outweigh” ones. mitigating But the prosecutor telling jury short of stopped it must death if factors outnumber the aggravating mitigating (See ones. People Myers (1987) Cal.3d Cal.Rptr. 698], 729 P.2d finding prosecutor’s use of a motif’ in his argu “scale ment did not mislead the since he did not that a mere mechani suggest cal “counting” process was involved.)

The prosecutor affirmatively that “What the law is explained telling is that weigh the In aggravating mitigating (Italics added.) factors.” the “scale” using analogy, the prosecutor by a mechanism simply suggested which the jurors could out the separate factors aggravating mitigating before proceeding to their task of to be ascertaining weight appropriate them. given addition, the prosecutor explained each must juror

decide for himself whether a particular item of evidence should be deemed aggravating or mitigating; (2) the of the evi- prosecutor’s characterization dence was itself not evidence in merely the case but intended to offer was there “guidelines”; (3) did exist some mitigating evidence or circumstances case, Furthermore, in the including the absence of prior convictions. noted, he told the jury that under (k)” “any “factor it could consider record,” evidence at all in this all including testimony the witnesses. Any ambiguity about the jury’s certainly weighing responsibility counsel, cured defense who must decide for explained jurors *17 or aggravating deemed in the case should be themselves what evidence deciding to find in you” one can what elements and that “no tell mitigating, jurors the could although that Then counsel observed question. the penalty you” what up “it is a chart the suggested prosecutor, draw as up belongs evidence there. is instruction sentencing the although that

Finally, counsel explained terms, the that become scale “you in nonetheless mandatory indeed phrased on,” “mercy the is room for within there weighing process this occurs law,” in the system” “no involved point and there is framework the stressed each Counsel juror. because occurs within process, weighing the base juror his penalty are all creatures” and each should “you that moral your decision “on own moral scale.” that he agreed final conceded closing argument,

The in his prosecutor, the had He then urged with defense counsel stated. “practically everything” from jurors may detract to follow and “drive out influences that the law issue. needed the pure judgment” deciding penalty Thus, that it must jury thinking not have been misled into could outweighed mitigat- death in number impose aggravating factors ones. The a “scale” consistent with prosecutor’s reference to was ing function, they jurors’ weighing aware that and the were made well jurors or mitigating, could decide whether evidence was particular aggravating “mercy” on for an whether factors called exercise mitigating their part. Brown, believe

Turning second of our we concern aspect an or not death was jury obligation understood its to determine whether true, observes, that the for defendant. It is as defendant appropriate penalty instruction, statutory mandatory on the phrasing focused out “shall” death if the circumstances impose aggravating indeed, an ones; he described “automat weigh mitigating the process from ic” But the in substance argument one. was no different prosecutor’s Allen, ‘Shall, not Cal.3d argument People supra, [“ If very It is evidence may, might, maybe. explicit. aggravating not ”], shall return a verdict death’ you evidence outweighs mitigating case, not, have misled the facts of that which we concluded could Allen, is to instruct the jury. improper per As we stated in it not se 38.) it fn. (P. “shall” death. 250, 275-276, 43 Cal.3d Myers, supra,

We acknowledge There, position. some which defendant’s might support contains language law fact-finding process. that “Your prosecutor urged job upon weight you give, what the shall what depending dictates what the total is to weight each aggravating circumstance mitigating .... It would not be appropriate result determine what want to obtain and then seek to shade the factors or the weight give the various factors.”

Myers concluded that this jury’s because the improper, *18 task was “not to simply determine whether aggravating outweigh factors mitigating factors and then to the death as a result of that penalty determination, determine, but rather to after consideration of the relevant factors, whether under all the circumstances ‘death is the penal appropriate Brown, 276, for ty’ the defendant before (P. it.” 40 quoting People supra, 512, 541.) Cal. 3d

Myers There, factually to be appears distinguishable. the ad- prosecutor that, jury monished the because mandatory of the of the in- phraseology struction, it would be or improper deciding penalty “shade the factors weight give to various factors” in order to reach a particular penalty. Such was argument for a have misleading, juror reasonable might construed it as meaning that he or she could not different assign weights values to the various aggravating and mitigating factors.

Moreover, Myers was unduly critical perhaps of the reliance prosecutor’s mandatory upon of the language standard instruction. That language directly taken from the 1978 death penalty accurately law and describes jury’s function under that law: to and weigh applicable aggravating and, basis, alone, factors mitigating that and that basis to determine course, whether death is an appropriate Of as we penalty. explained Brown, 40 supra, Cal. 3d included within the function itself is weighing the determination whether death is an under “appropriate” penalty Brown, circumstances. As we said in “the jury, by the various weighing factors, determines under simply the relevant evidence which is appropriate the particular (P. 541.) case.” Serious constitutional challenges could arise were instruct the ju- we to rors they may their place decision as to the “appropriate” penalty upon than, to, some undefined criteria other or in addition of the weighing aggravating mitigating circumstances in the case. Such an instruction comes perilously close to violating Georgia the mandate of Furman v. (1972) U.S. 238 L.Ed.2d 92 S.Ct. 2726], jurors must be given specified standards or guidelines within which focus their discre- Furman, tion. Under we simply cannot tell the all the jury “weigh factors, but regardless the outcome do whatever think is appropri- ate.” Such an arbitrary instruction would invite decisions based on improp- er or sentencing irrelevant considerations the de- including, example, fendant’s race. “fol- the jurors

Thus, urging in a prosecutor see no impropriety we applicable weighing decision on a base their penalty the law” and low weighing factors, process inherent in the it is understood that so as long itself so that, Myers explained, as “appropriateness” determination of is the noted, fully understood case in the present essential. As previously various it deemed weight appropriate whatever assign that it could should factors, decision that its penalty mitigating aggravating Therefore, the record viewing in the case. based on all the evidence proper from a whole, derailed cannot conclude we through of death to determine duty appropriateness of its understanding weighing process. additionally prosecutor’s argues

Defendant 472 U.S. under Caldwell objectionable Mississippi herein was telling 2633], court condemned high *19 L.Ed.2d 105 S.Ct. wherein in which Court availability Supreme of an to the state jury appeal the or “appropria determine the “correctness” reviewing the court would argument such decision. Caldwell deemed jury’s sentencing teness” of the “that the respon lead some to believe jurors because it could impermissible rests death the of the defendant’s sibility determining appropriateness for (Id. 239].) L.Ed.2d at p. elsewhere.” however, above, impli- are not As we have Caldwell’s concerns explained believing into misled jury cated here because we have concluded the was not We believe the determination of rests elsewhere. “death-appropriateness” the very to the the outset jurors the made it clear from prosecutor In in their hands. solely death penalty decision whether to the rested remarks, “you are his the opening prosecutor explained have will probably to have one the most decisions that going important of to decide based your going to make in the course because are of lifetime life impris- evidence whether a human shall suffer being on the and the law shall (Italics added.) onment or suffer death.” guidance much

The observed that the “law” will prosecutor provide decision, aggravating various including the reaching penalty specifying He be based. must factors which the decision mitigating upon circumstances aggravating also that once the concluded the explained ones, atBut a death “automatic.” sentence was outweighed mitigating sentenc- to another attempt no time did the to the buck” prosecutor “pass whole, realized thus reviewing body. jurors On we believe ing theirs, Cald- alone. No and theirs sentencing responsibility the ultimate well occurred here. error judgment is affirmed.

Panelli, J., J., J., Kaufman, J., concurred. Arguelles, Eagleson, MOSK, J., Concurring in the affirmance of Dissenting. I concur judgment as to and in the guilt sustaining special of circumstance findings. however, dissent,

I from the affirmance of the judgment penalty. their discussion the have novel majority satisfy devised a means reliability constitutional for a requirement heightened sentence death: no matter how the instructions and the misleading counsel arguments be, may will if prosecutor be deemed able “cure” the harm his statements to jurors correct some and a respect, reviewing court will its stamp approval the ultimate result—even him- self responsible is even if large part jurors, and misleading of his result erroneous is death. I cannot subscribe to such an “rule,” even is unprincipled society’s when it the case of one of applied in malefactors. The satisfaction of one grim eliminating criminal is repetitive damage not worth the administration the fair and orderly justice. show, As I shall the majority opinion contrary to the decision of the United States Court in Caldwell v. Supreme Mississippi U.S. 320 *20 231, L.Ed.2d 105 S.Ct. and to our decision in 2633], People Brown [86 834, (1985) Cal.3d 512 516], 726 P.2d reversed on other Cal.Rptr. [230 grounds sub nomine v. Brown 479 U.S. 538 (1987) L.Ed.2d California 934, order, 107 S.Ct. my Yet colleagues authority by any this ignore 837]. means, to inflict on this they just defendant what to be his perceive deserts.

Penal Code section 190.3 (hereafter 190.3), section as part the adopted law, 1978 death penalty states in relevant that “the trier of fact shall part consider, take into account and guided by the aggravating mitigating section, circumstances to in referred this and shall a sentence of impose if the death trier of fact concludes the circumstances aggravating out- weigh circumstances.” mitigating

In Brown we mandatory held section sentencing formula of 190.3 Nevertheless, was not unconstitutional in itself. (40 Cal.3d at pp. 538-544.) recognized we in an that when delivered instruction the unadorned statuto- ry mislead the as to language might jury scope sentencing its discre- (Id. 544, tion and at fn. With responsibility. p. 17.) to cases which respect jury had been instructed in statutory we announced that language, we would examine each such on its to whether merits determine appeal jury may have been misled to the This is (Ibid.) defendant’s such prejudice. a case. the unam- two. The first was that essentially

Our concerns Brown were nature of as to the jury 190.3 mislead the might of section plified language context, metaphor is a the word ‘weighing’ “In process: weighing [its] The word description. is of precise for a which nature process incapable for a one which calls certainly but not balancing process, connotes a mental ‘scale,’ the imaginary mere of factors on each side of counting mechanical free is to to of them. Each arbitrary assignment ‘weights’ juror or the to each value he appropriate moral or deems assign sympathetic whatever . Cal.3d (40 is . . .” and all of various consider permitted factors at p. 541.) mislead the statutory might

Our that the language second concern was determination it on to as the ultimate was called jury to the substance of “could be under Contrary language make. principles, constitutional circum aggravating stood to to determine whether ‘the juror (i) require juror’s regard stances circumstances’ without outweigh mitigating sentence, (ii) as to the and then personal appropriate view does juror sentence even if the outweighs mitigation of death aggravation cir believe is the all the personally death sentence under appropriate . . . .” cumstances Allen 42 Cal.3d (People Cal.Rptr. 115].) statutory 729 P.2d In Brown we that the declared “ ‘an language should rather be make interpreted require individual individualized determination on the basis of the character ” deleted), (40 circumstances of the crime’ italics Cal.3d (id. thereby decide “which in the case” appropriate particular 541). at p. bar,

In the mislead- potentially case at the court instructed the in the 190.3, addition, deletion, ing words of section or mod- significant without Further, ification. ren- prosecutor’s closing argument will appear, dered words actually misleading. those *21 some in- prosecutor’s relatively making short. After jury’s

troductory governed remarks and the law” that “reviewing] determination, he sentenc- quoted expanded statutory several of of the your factors. He then “It is determine ing duty stated: now which life, death in without penalties, prisons two or confinement the state the evi- After heard all of possibility parole, imposed. having shall counsel, you shall arguments dence considered the having heard and factors of consider and take into account and be guided applicable in- you been circumstances which have aggravating mitigating upon structed. . . . the miti- you outweigh

“If conclude circumstances aggravating circumstances, word a of death. gating you Again shall sentence impose Now,

‘shall’ is used. Somebody is there a schoolteacher on the jury? must know the difference between in ‘may’ ordinary and ‘shall.’ ‘Shall’ parlance in its ordinary signification is a term of command and one which must be given a compulsory meaning and denoting obligation.”

The you you continued: “What the law is is that telling weigh the aggravating factors and the factors. So I’m to discuss mitigating going you with factors and the aggravating mitigating you factors. What . might do—and . . ladies and there is I can do gentlemen, nothing say or you. to help This is a you decision that to have to make. All I can going you do is give some help probably maybe way you might logical- ly about go your performing duty. have—you You draw a line might big and draw a line down like a scale.

“You scale, list all might of the mitigating factors on one side of the list all scale, factors on aggravating the other side of the and make a finding fact and answer this Did the question: factors out- aggravating weigh the factors? Or mitigating conversely: Did the factors mitigating outweigh the factors? aggravating

“Okay. What does the law you you tell to do in that If conclude regard? circumstances, the aggravating circumstances outweigh mitigating you However, shall impose sentence of death. you if determine that the mitigating circumstances, circumstances outweigh you shall aggravating impose sentence of confinement the State Prison without possibility of parole.

“So once you facts, make your findings the law is somewhat automatic. The you law tells what to do. The law doesn’t tell you how find, what the facts are that you should you you but it in this sense. If helps find that the aggravating circumstances outweigh mitigating circum- stances, you shall the death you If find that the penalty. mitigating circumstances, circumstances outweigh the aggravating you shall impose life imprisonment. is,

“It doesn’t give you any control over that. So the much pretty law automatically flows from you the facts as find them.”

In concluding his argument you the prosecutor jury: given told the “I’ve some idea that I is at hope you least at this decision helpful arriving you have to make. Bear in mind ... find have to look [that] *22 the law because the law has carefully been is aware that structured. The law you very have a important decision to make.

“It takes a little bit of out in the sense that have to facts. sting you decide decide, do, Once you if you that the outweigh circumstances aggravating circumstances, the mitigating it’s automatic. You shall death. the of portion care burden or that in the takes of that “So that sense law trial, are you at first the phase So are as were the of burden. what finders of fact.” very harm we the of the thus caused argument closing First, weighing of the jury in he the as to the nature

feared Brown. misled “finders they were He as in the jurors just guilt phase, told the that process. fact.” He also of “finding of fact” and their determination would be mechanical essentially a “mere the as process presented penalty-fixing . .” . . (Brown, of on of an ‘scale’ counting imaginary factors each side Second, the substance of 541.) jury he misled the as to Cal.3d at supra, the that jurors the ultimate it on to make. He told the decision was called the aggravating outweigh law them to vote for death factors compels as of that penal- of their belief mitigating, regardless appropriateness Three times ty—even (ibid.). the law no such though imposes compulsion circumstances. erroneously called the death “automatic” these penalty fact by This of the unaffected understanding prosecutor’s argument narrowly he also cabin the made certain comments that seem not to context, and these insubstantial sentencing process; comments both insignificant. Nor is it that in his own defense counsel significant argument stated, “I think a most and honorable prosecutor] gave you honest [the discussion,” and then as a moral assess- described determination ment of facts. plainly attempt ingra- Counsel’s remark constituted an himself subtly tiate with the into the put prosecu- and his own words mouth; certainly tor’s it not words could imply prosecutor’s does reasonably meaning. be understood other than in with their plain accord Finally, my conclusion is not affected comment prosecutor’s said,” rebuttal that “I with has a simi- agree everything counsel practically lar attempt ingratiation.

Moreover, I am unable to conclude that defense counsel’s description sentencing as a moral assessment of the facts process prevented In being mandatory language from misled. face of apparently section 190.3 instruction the prosecutor’s repeated quotation, para- argument would evident- phrase, explication language, counsel’s ly be heard little other from their oaths jurors than a plea depart mercy the law. dispense that was theirs to under give instruction,

In its potentially misleading addition to effect on the under Caldwell independently objectionable prosecutor’s jury’s as an to minimize the sense Mississippi, supra, U.S. attempt for of death. responsibility determining appropriateness “In their high Caldwell the court stated the relevant facts as follows. lawyers youth, mitigation, case evidence put [his] [Caldwell’s] *23 family background, as well as character evidence. poverty, general their closing arguments they referred to this evidence and then asked the mercy. to show arguments were large part pleas confront both the another’s gravity for responsibility calling death, even in the context of a . . . capital sentencing proceeding.

“In of im- response, jury’s to minimize the sense sought of its portance (472 237].) role.” U.S. at 324-325 L.Ed.2d at pp. p. [86 “ Specifically, have jurors told the would ‘[defense counsel] you’re believe that kill going they know—they this man and know ” (Id. your decision is not the final decision. . . . Your is reviewable.’ at job “ p. L.Ed.2d at He render is p. 237].) went on: ‘The decision [86 automatically ....’” by Automatically reviewable Court. Supreme (Id. at 325-326 L.Ed.2d pp. 237].) at p. [86

The jury returned a verdict of death and the court the defend- sentenced ant accordingly.

The United States Court Supreme judgment reversed as the ground that “it is sentence constitutionally to rest a death impermissible on a determination made that the sentencer who has been led to believe for responsibility defendant’s death determining appropriateness rests elsewhere.” (Id. at 239].) 328-329 L.Ed.2d at pp. reasoned,

The court that an such as the part, prosecutor’s prejudicial that it “offers role which jurors might view of their frequently be attractive. A highly jury is made capital sentencing up individuals unfamiliar in a to make a placed very situation and called on very difficult and uncomfortable choice. are confronted with evidence They die, and argument on the they issue of whether another should are Moreover, asked to decide that they issue on behalf of the community. exercised, only given partial guidance to how their should be judgment situation, them leaving with substantial Given such a discretion. [Citations.] the uncorrected that the ultimate determi- suggestion responsibility nation of death will danger rest an intolerable presents [elsewhere] jury will in (Id. fact choose to minimize the of its role.” importance 332-333 pp. 242].) L.Ed.2d at p.

The court out of a explained: “for a sentencer to a death sentence desire to avoid for its responsibility specter decision presents imposition wholly legitimate death based on a irrelevant factor sentencing concerns. The death from such a emerge sentence that would sentencing that the State proceeding would a decision simply represent had demonstrated the This would of the defendant’s death. appropriateness thus also create of a defendant’s executed in the absence of danger being *24 (Id. at punishment.” was the appropriate determination that death 241].) fn. omitted L.Ed.2d at p. p. defense phase at bar. At the penalty

I this to the case apply reasoning on the determining, for responsibility counsel to confront its urged jury facts, defendant whether of the basis an individualized moral assessment contrast, repeatedly By should condemned to death. As responsibility. minimize the sense of its constitutional sought jury’s show, jurors he told the argument plainly of his quoted portions of death deciding appropriateness essence that the for responsibility law,” made “the which rested not on them but on a reification he called not “found.” It was if certain “facts” were ultimate “automatic” law,” insisted, condemning the “burden” they but “the that bore defendant to death. rationalization, either I consider cannot majority’s exercise

Despite argument objectionable Brown error or the independently prosecutor’s Caldwell, court to be the high harmless. In the sentence of death vacating deci- explained: always “This Court has its premised capital punishment gravity sions on the that a assumption capital sentencing recognizes ‘truly of its awe- its task and with the awareness proceeds appropriate case, jury’s some to minimize the responsibility.’ sought In this the State of death. Be- sense of responsibility determining the appropriateness decision, say sentencing cause we cannot had no effect on the this effort reliability Eighth that decision does meet the not standards be vacated.” Amendment of death must therefore requires. sentence (Id. at 247].) L.Ed.2d at p. on the

Until decisions today, this court too had its premised capital responsibility its constitutional assumption recognizes grave when it considers the of life or death. question threatened,

In the case at and the prosecutor’s bar the Brown error minimize argument sought, jury’s responsibility: sense of that law,” and jurors were led that it was “the to entertain the erroneous belief they, that either the say who rendered the verdict. Because I cannot effect, I error or the was without objectionable independently reliability cannot jury’s requirements conclude that the decision meets Amendment. Eighth reverse the For I the verdict of death and these reasons would vacate judgment as to penalty. *25 J.,

Broussard, concurred. and the rehearing April for a was denied Appellant’s petition Broussard, J., J., Mosk, modified to above. and opinion printed read that granted. were of the the should be opinion petition

Appendix gave argument: “I Munson beginning Defense counsel stated near of his think Mr. the own you ‘argument’ a most I the in deal- honest and honorable don’t to use word discussion. want trial, you penalty, ing you this must death with state of the he didn’t tell that vote for the and you you honestly parole, quite must told that possibility or vote for life without of because you you, you aggravating up and want to view what consider to be an is how circumstance it; you you, you view it.” mitigating up and what consider to be a is and how circumstance (Italics added.) following prosecutor opened portion The the state- substantive of his with the “Now, you you going important that will ment: are have to make one the most decisions of your you probably going have to make in the course are to decide based on because of lifetime being imprisonment the evidence the law life or shall suffer and whether a human shall suffer death, decision, very you you give guide and little that or this but there is an there’s I can on you you, for give things provide awful lot the can is an the can law and there awful lot of law making added.) important judgment (Italics this terrible on human life.” jury’s proceeded governed The the determination. then to “review that the law” by began statutory He quoting expanding sentencing He factors. contin- and on several of the your duty penalties, “It is death or confinement ued: now determine which of the two life, having prisons parole, imposed. After heard possibility the state without of shall be counsel, you shall having of con- arguments all of the evidence and heard and considered the and aggravating miti- guided applicable sider and take into account and the factors of be things just that I gating you upon which have been Those were the circumstances instructed. A, B, C, you ago, D. read to a minute or two circumstances, you outweigh mitigating aggravating the conclude that the circumstances “If Now, there a school- you impose Again shall the is used. a sentence death. word ‘shall’ of Somebody may in ordi- the shall. Shall jury? teacher on must know the between and difference given ordinary a nary parlance signification is a term and one which must in its command of compulsory meaning denoting obligation. and « “Now, you weigh telling you aggravating factors is the law. What law is is that the that the you aggravating factors and the mitigating going So I’m to discuss the and the factors. with do—and, nothing I you again, gentlemen, there is mitigating might What ladies factors. say you. you going All I can do is help This is to have to make. can or do to a decision way logically performing you maybe you might go about give help probably in the some duty. have—you might big a scale. your line a line down like You draw and draw scale, aggravating list might mitigating all the “You list all one side of of factors of scale, Did finding question-. answer this side make a on the other factors of offact mitigating conversely: aggravating outweigh mitigating Did the Or fac- factors? factors outweigh aggravating tors factors! aggravat- you “Okay. you regard? If conclude that the What does the law tell to do circumstances, ing outweigh you impose sentence mitigating shall circumstances However, aggravat- you outweigh the mitigating death. circumstances determine circumstances, ing you without impose in the State Prison shall a sentence confinement possibility parole. law tells you your findings facts, The make the law is somewhat automatic. “So once find, you it you you but are that should what to do. law doesn’t tell how what the facts mitigat- helps you you outweigh the aggravating in this sense. If find that circumstances circumstances, mitigating circum- ing penalty. find that impose shall the death If circumstances, you outweigh imprisonment. life aggravating stances shall *26 is, automatically give you any pretty “It much over that. So the law doesn’t control flows ” you added.) (Italics the them. from find facts length during under the prosecutor presented The then at the the trial considered evidence “K, statutory any circum- (k), at other several stance, factors. When he arrived factor he stated: though is any it gravity other extenuate of the crime even circumstances which the you all in this legal not a for the that evidence at excuse crime. That means can consider photo- testimony all the all the record. You can consider the witnesses. You can consider of of ” evidence, graphs, everything. (Italics added.) physical all the concluded, prosecutor given you hope is at least As he stated: “I’ve some idea that I you you helpful you arriving you find have Bear in that if to this decision to make. mind carefully have is aware that to look at the law because the law has been structured. The law you very important have a make. decision to decide, you you sting a little bit that “It takes out in the sense to decide Once have if of facts. do, circumstances, you aggravating outweigh mitigating it’s auto- circumstances impose matic. Youshall death. So what portion “So in that sense the law that of the burden. takes care of burden or that trial, you you you judges. You are as were at the You are phase are first of finders of fact. arbitrary, Obviously, could—nobody you you—from being are from stop the deciders. can well, outweigh being capricious. say, aggravating the miti- You could circumstances do all circumstances, gating just going but the it. I’m to do it. heck with you you community stop stop you your “I can’t people can’t from that. The live with added.) only you (Italics doing you from that. The an thing I can tell is that did take oath.” opening and prosecutor’s After his “most honest with the comment about the discussion,” guilt phases of proceeded compare penalty honorable defense counsel to and capital a trial. trial, stages you You heard stage have had two and the heard evidence. in this first “[W]e argument. instructions, given you You were and made a decision. stage you arguments. given in- “In this have You will be heard evidence. have heard You structions, you and will arrive at a sentence. similarity. They very stages only “But different. those two have that kind of shallow are you stage you alleged, the first were are certain and were instructed told that there crimes elements, that proved, that must and Court that each of those crimes has certain facts be you proof beyond the standard use is a reasonable doubt. formula, beyond to un- but it so hard “Proof a reasonable isn’t a mathematical is not doubt basically very, very It was al- you you take derstand. It means are sure. So can that standard. facts, up you you, come and and do those facts most like do see scale in front of look at the doubt, prove beyond you to did reasonable and that. for, stage your job. you looking here in this You elements but “You did knew what were anybody way can tell special trying proven you. There is no there is no facts that are to possi- you you you penalty without or life what elements find before arrive at the death must bility parole. of side, other, say, you “You aggravating mitigating can draw can a chart with on the one you aggravating but what mitigating you, decide is up part or is and the worst it is how do of you compare? What is the formula? “And I quite honorably you. you think that is what up Mr. Munson told It’s to decide. The you you law tells impose you penalty aggravating outweigh shall one if find factors mitigating. mitigating outweigh aggravating. You shall the other But this out- weighing something you. only is not to take It outside can be internalized. You become the scale on, weighing very this you occurs and I think that Munson honorable with in not other, standing up saying you here and somehow and the law insists one and/or find hope going I I’m just (Italics added.) to be as honorable.” proceeded argue Defense counsel then imposition imprisonment for the of life without possibility parole. explained general opposition penalty. He stated and his to the dealth He then mercy asked the to exercise in consideration of the hard life defendant had been forced to redeeming qualities lead and the he had nevertheless shown. He told the members jury; aggravating mitigating “You are the scales weighed, on which this and must be you people making means that what are as play comes into this decision. You are not a lions, ants, jackals, computers. or beings. you are You human That means ” animals, your moral (Italics and it is on own moral scale that will make this decision. added.) Defense counsel yours. concluded: “The hope grants decision is I that God wisdom to decision, right make the you, I gentlemen. what it is. have faith in ladies and The decision yours.” opening then made a brief given you rebuttal. In “I stated: have the law principles gone of law. I aggravation have over each mitigation. of the elements of *27 give you I’ve tried way determining some you rational the terrible decision have to of me, agree me, practically make. I everything with tough counsel had said. Believe it’s too. [fl] tough judge. tough It’s on you. It’s tough everybody. very on It’s These are difficult things society, to do in a but that’s what we have. people We have courts of law. We have from community people charged which these judgment are to come in and sit in of them. I mind, mind, simply get you want to in the judge, the mind the moral framework of of fair issues, evidence, consider, the mind that will take all dispassionately weigh all of honest, (Italics render an added.) verdict.” and a true fair response to defense counsel’s potential, statement about defendant’s rehabilitative above, quoted which is prosecutor then made the comment about defendant and a homo- cellmate, sexual quoted which is also above. conclusion, last, At the following say- made the statement: “And what I’m you ing you, you are ‘Well, but society. say, are us. You are You can be selfish. can’t You gee, I want to do this. I want to do that.’ you “I wish luxury. could have that luxury. you You don’t stripped have that We have representing oath, that. You are all luxury. of us. You don’t have this individual You took an T will follow the law. I you will representa- follow the instructions Court.’ Because us, people, tives of the my all of going go things. say. and I’m not on to more I’ve had “I think Mr. say. just Berman you you had his I want to remind follow the law. When facts, remember, decide the please, you please, judges. you sit as Drive out influences that may think pure judgment detract from that things that is needed in Drive this decision. out creeping your start into anything pure, mind that feel than a would render less hon- est, open, that, judgment fair quality your because if do judgment will be reflected verdict, your may whatever it be.”