*1 No. 21374. Dec. [Crim. 1985.] PEOPLE,

THE Plaintiff and Respondent, PHILLIPS,

RICHARD LOUIS ARNOLD Defendant Appellant.

Counsel Jr., Frank D. Berry, Court, under appointment and Paul I. by Supreme III for Myers Defendant and Appellant.

George Deukmejian and John General, K. Van de Attorneys Robert Kamp, Philibosian, H. Chief General, Assistant Arnold O. Over Attorney oye, General, Assistant Attorney Jones, Sweet, Willard F. Jane Nancy N. Kirkland and General, Edmund D. McMurray, Deputy Attorneys Plaintiff and Respondent.

Opinion REYNOSO,J. Code, 1239, is an (Pen. automatic subd. appeal This § (b))1 after defendant was sentenced to death for robbing shooting two confederates in scheme, putative one He drug trafficking fatally. found (§ of two counts of guilty by jury 211), one count of at- robbery 187, (§§ 664) murder and one tempted count of first murder with a degree circumstance, i.e., (former murder in the special commission of a robbery 190.2, (c)(3)(i), 9, subd. as enacted Stats. ch. 1257- pp. § § statutory

1All further Penal Code unless otherwise indicated. references are voters measure of the initiative approved by Prop. repealed in the used a firearm 1978). that defendant personally Nov. Allegations *10 robberies, murder, and the murder the attempted of one of the commission 12022.5.) (§ true. found to be were defendant’s we affirm arguments, of each of

After careful review However, circumstance finding. on the and the special guilt phase judgment because the trial court on the penalty phase we reverse the judgment of other instruction regarding reasonable doubt failed to a give crim- court failed to limit admissibility and the trial activity, criminal the commission of an actual evidence that demonstrates inal activity crime.

Facts (the Bruce Bartulis and mur- Defendant became with robbery acquainted (the victim) in victim) and Ronald Rose and murder robbery attempted der Bartulis, busi- Rose and who were the construction of 1977. September ness, houses to defendant’s home in adjacent Newport some began building Beach, allowed The three men became after defendant friendly California. an electrical outlet located on his premises. builders use Bartulis

On the first of November defendant offered Rose and day an cocaine participate large purchase, proposing opportunity $25,000 invest them a return of five invest- they and times their promising and, ment. Rose and on November cashed Bartulis Rose accepted, $10,000 check for to defendant. On several occasions gave money thereafter, mon- defendant them “to come with the rest prodded up $1,500, Rose ey.” eventually defendant a check for but subsequently gave told him defendant that could not deliver more cash and asked they either to use the amount had him or to return De- given money. they fendant to use the agreed money. to Rose

In late November or December defendant indicated early Bartulis, insu- obtaining who told defendant of their difficulties had could they that he knew where constructing, lation for the houses were they insulation, deal.” brother was a of this obtain some stolen since “his part would that they In no Defendant told the builders fact defendant has brother. in a Fresno, stored where it was being have to the insulation pick up some of the insulation. Rose and Bartulis buy warehouse. agreed 7, 1977, Rose that the defendant informed of December On the morning Rose had in Fresno. to be up night was available picked insulation $25,000, note for which rep- promissory and given notarized $25,000 resented the balance of the had committed them- Rose and Bartulis selves to in the cocaine Defendant deal as well as for the insulation. payment told Rose that should him station they just meet at a evening gasoline off the freeway, instructed him as much cash to “get together [he] could.” $3,500 $5,000

Rose obtained between bills. in large-denomination hand, With that in he and Ranchero. Bartulis drove to Fresno in Rose’s 1977 Rose vehicle, had an unloaded .44 am- in the with some magnum pistol munition behind one of the seats. checked motel They designated by into a *11 defendant and then went to the time. Within gasoline station at the appointed hour, arrived, half an defendant Col- his Sharon accompanied by girlfriend, man.

Colman had been with defendant since October and was living acquainted with Rose and Bartulis. That she had flown from Beach to day Newport Fresno. She then defendant, Sacramento, called ar- who had flown to and to have ranged him her at the pick in Fresno. Defendant arrived up airport about 11 airport p.m., he had borrowed from his driving Toyota (who mother resided in Sacramento). He told Colman that were they going to meet Rose and Bartulis at a gas station.

Defendant and Colman met Rose and Bartulis at the station about gas 11:30 p.m. Defendant directed the builders to follow him to where they would meet his brother. followed as defendant and Colman drove They north on drive, In Highway 99. the course of the at an open they stopped station, out, gasoline where he defendant used the restroom. When he came walked over to the Ranchero and The four borrowed a book of matches. then continued their trip. in a

Eventually, defendant exited the and the vehicles freeway stopped vacant area off the out of road and east of the Defendant just got off-ramp. (which and was Toyota walked over to the driver’s side of the Ranchero radio, parked alongside). While Colman sat in the Toyota listening while, the three men marijuana talked for a some beer drank and smoked side, At one cigarette. defendant re-entered his car on point, passenger the con- his continuing conversation with Rose and Bartulis. The tenor later, versation was not exited A few minutes defendant angry. again driver’s car and stood next to the inside the Ranchero. Defendant leaned and, window. Suddenly Colman heard shots fired. She saw being gunflashes window, hand. She as defendant withdrew his arm in his from saw a gun driver, Bartulis, him striking heard the defendant silenced him by moaning; extracted the head with the over Defendant leaned Bartulis forward gun. wallet, did the then went around to the other side of the Ranchero and his not search, he could he of this complained Rose. In the course same to with Toyota to the He returned to have. find the were money they supposed shooting had used in (the one he and two handguns the two wallets the trunk had Colman open Colman. Defendant another) and handed them to the gas- He then car, poured a can of gasoline. from which he took ablaze. and set them the Ranchero and its occupants oline over while shot, had “played possum” Rose being Rose was still alive. After with the As over him. was and even while gasoline poured searched being He did things. do either these he did see defendant actually shooting, side, on the driver’s at the window recall that defendant was alone that he was standing, in which defendant shots came from the direction When searched. while his body being a male voice close to him heard to shed his afire, and tried out of the Ranchero he was set Rose jumped Defendant, begun run back to the Toyota who had burning clothing. that Rose around, to Colman running away. Complaining it saw Rose

turn crack- him, dead,” and hit in the process drove at Rose “wasn’t the windshield. ing *12 calm, some- though to Sacramento. He was

Defendant Colman drove several He lamented Rose was dead. what disturbed at not whether knowing he that Rose was money supposed times that had been unable to find the wallets, Colman over to defendant with handed (The have had him. which car, that $150.) Defendant also commented $120 in contained only “was too too close.” his of a calibre because he was gun big Sacramento, defendant’s went to the home of Upon reaching pair been to he had mother. mother’s room and told her Defendant went to his been cracked home the windshield had a “disco” dance and on the way “take care he would He assured her some thrown a truck. gravel by up downstairs, later, defendant’s voices it” that A time hearing short day. thought had originally she investigate. Though mother came downstairs to with him. alone, Colman) woman her was she saw a (presumably son High- along Meanwhile, Sheriffs County Deputy proceeding Madera two out, on turned in the sky noted a glow 99 on a routine way patrol ran to The freeway. deputies off the to be three fires just closer inspection, five had suffered Rose him, the flames. and covered extinguishing Rose he was taken When body. of his and bums over 65 percent wounds gunshot that he would live. thought to the it was not hospital, in the dead, wound with a bullet Ranchero, found Bartulis was

In the and the chest in the left side been shot to have heart. He appeared used. Two or .45-calibre—bullet that a large—.44- wound indicated Ranchero, bullet holes were observed in the .45-calibre shell spent was found near the vehicle. The found a ground jacket also deputies burned containing badly $100 currency showing denominations. after day Colman flew killing, to Fresno. remained in Defendant for Fresno,

Sacramento a few days. While Colman was in defendant told her on the telephone he had had a friend call the and learned hospital condition,” that Rose was in “really bad that he “didn’t a lot remember and “couldn’t talk or things” Defendant visited Colman Fres- anything.” then no and they each rejoined other Los drove Angeles; they from there Lake City, Salt where had Colman relatives. arrest; On December a warrant issued for an arrest defendant’s was also warrant apparently issued Colman. Colman left Salt Lake later City, the latter apparently part December and returned to Sac- ramento the car defendant had De- borrowed from his brother-in-law. fendant to have Colman arranged stay at a motel in Sacramento await Instead, contact from a friend of his. Colman took the to turn opportunity in, herself defendant’s despite “she would expression confidence that be dumb cross it, him or call enough about because if he was anybody in a situation where he to [her], couldn’t he somebody that would have get else could.” Defendant was apprehended the Federal Bureau of on March Investigation 1978.

The defense was alibi. Defendant primarily sought persuade friend, that Colman and Rose and defendant’s Graybill erstwhile Richard *13 (who aided their in efforts police defendant) to were involved in apprehend a to fix defendant with the conspiracy blame for the were shootings, by committed and in the purportedly Graybill Colman.2 Rose’s participation it was in conspiracy, suggested a desire argument, might explained $25,000 to the avoid off the necessity paying note or to avoid criminal for liability Bartulis shooting himself.

Defendant admitted Rose and With to the co- knowing Bartulis. regard deal, he caine testified that he set a for individuals in- up certain meeting in terested consummating transaction, such a barbecue using large party individuals, as a Bartulis, “front.” These and had expressed Rose including in interest using defendant’s his South American “source” “transpor- and tation to supplies” bring cocaine into did not attend the Defendant country. himself, the but meeting understood taken were six shares there presented defense also 2The witness day killing who on he testified that after saw appearance unlike in person defendant boasting having having about been involved in or in seen Fairmead. a shootout $35,000 was “coordinator” investors at a share. Graybill Richard deal, source to to defendant’s go though money ultimately was $10,000 “front (whom Peru name). he refused to After putting up with were to come money,” up Rose and Bartulis and unable had difficulties “cool” $25,000. being vouched for them as remaining he had Because them”) agreed to the for other “co-signed participants (essentially their $25,000 lend use of to note and the them for a exchange promissory their to defendant that part contractor’s license. When Rose indicated insulation, defend- unavailability business difficulties stemmed from in Fresno ant told Rose that business building supply was in the Graybill Rose in put contact with him. then a disco Defendant testified that he at a business meeting was on refused to divulge Sacramento he night though took killing place, the motel in identities of the came to Graybill at the meeting. people to bor- Sacramento where and asked taking place defendant’s meeting and, row at about (defendant’s) his lent him the car mother’s car. Defendant and then midnight, drove from the motel to a disco Cadillac Graybill’s Colman, home. with a dam- returned the Graybill, Toyota accompanied by windshield 5 in without aged morning, explanation. between 4:30 and next day. Defendant had the windshield replaced defendant,

When had assertedly, already he left the state after the killing, him,” “had been with “ride since defendant agreed to the beef Graybill his nar- “had bad enemies” from prison” very prior some Graybill cotics Lake “let City should Salt dealings. go decided defendant They his himself up cool off” behalf things give while Graybill negotiated murder. plead guilty second degree

Discussion

I. Guilt Phase. of the trial. to the guilt

We review the claims error relating phase first *14 in represent- interest A. waived public conflict Defendant defender’s him at his ing preliminary hearing. assistance of the effective contends he was deprived

Defendant that defender, counsel, his the public since counsel at his hearing, preliminary merit. without This contention is stage. had Colman at an earlier represented to the waived any objection knowingly that defendant record reflects own on his based conflict, granted for his motion substitution after assertion a conflict existed.

44

At a on his motion hearing for a continuance of the preliminary hearing 21, 1979, court, on June defender to the for the public represented record, in defendant’s that he had to defendant that his presence, explained Colman, office had represented and that did her ... “we talk to did [and] have information said, from her.” He had further he de- explained, could, wished, conflict,” fendant if he “declare a that defendant had but indicated that he wished to be defender “at these represented by public stages the proceeding.” Counsel noted wish to that defendant still might “declare” a conflict before the Defense counsel’s re- preliminary hearing. marks later in the been hearing indicate that defendant had to encouraged to retain other expected counsel Defendant remained silent future. He throughout. was indeed defender at the represented by public prelim- Later, 30, inary however, 1979, on hearing. October defendant moved counsel, substitution of his as reason the defender’s declaring public his conflict of interest. The next heard court the motion and relieved day, defender public new counsel. appointed 21, 1979,

Defendant’s silence in the on courtroom June the face his counsel’s representations, does not show an and knowledge- unambiguous able waiver of the our deci- right effective counsel contemplated by sions; waiver, an decisions, effective and un- under these must be express derstanding, response advice specific poten- court regarding tial conflict and the In (See new counsel if a conflict exists. re right Hochberg (1970) 870, 681, 2 1]; Cal.3d P.2d 878-879 471 Cal.Rptr. [87 v. People (1968) 765, 10, Chacon 447 69 Cal.2d 11A P.2d Cal.Rptr. [73 106, 34 454]; 325, A.L.R.3d In (1965) re Johnson 62 334-335 Cal.2d [42 228, 420]; 514, 398 Cal.Rptr. (1978) P.2d v. 85 People Angulo Cal.App.3d 517]; (5th 518-519 also Cal.Rptr. see United States v. Garcia Cir. [148 1975) 272, 517 F.2d 278 advice as conflict [requiring dangers However, narrative move response by defendant].) defendant’s failure to aside set 995, information under section after his substitution motion was granted, bars him from his to the conduct raising challenge appeal 996; preliminary (§ (1980) 27 Cal.3d hearing. v. People Pompa-Ortiz 519, 529 (1967) Harris 941]; 612 P.2d 67 Cal.Rptr. People [165 Cal.2d Palacios 609]; People 434 P.2d Cal.Rptr. [64 137].)3 Cal.App.2d 571-572 Cal.Rptr. Defendant cites v. Anderson 70 Cal.2d 550, 447 P.2d for the “[sjection does not proposition express 942] mandate, however, an absolute and cases may arise in a defendant *15 the provides: “If motion to set 3Section aside is the indictment information made, precluded the from taking objections defendant afterwards the mentioned Section 995.” Section on his indictment for the first time appeal. attack may properly on cannot be raised to at trial like the rule that errors not general objected waiver, Thus, not show a do rests waiver. if the circumstances upon appeal, did not he though a the on even appeal defendant indictment challenge 995.” ( 23.) {Id., at p. the motion under Penal Code section by raise a point case, however, de waiver. Although do show a The circumstances of this was in of counsel to that his motion for fendant the fact substitution points was of interest that the conflict and propria persona attempts suggest itself,” court the counsel the “overlooked trial experienced that, for substitution record establishes doubt after his motion beyond any defender had the public was October defendant knew granted Colman, which of of conflict interest its owing representation prior defendant entitled to new counsel. whether brief,

In does not show his that the record reply argues Colman, he of was informed its representation that in the course of defender’s with Colman whereby office entered into an public agreement immunity she told the her an testimonial prosecution story under informal was What This makes no difference. arrangement. important possibility Colman defendant’s of the was the that knowledge conflict understanding had the context information about the crimes to her defender given public in cross- attorney-client an this relationship, possible problems posed Colman. examining no it that was valid waiver

Though may seem anomalous to conclude there 21, 1979, hearing, defendant’s counsel at June right his silence did but that his constitute silence the substitution motion was granted after waiver, knew all that record shows that the latter time defendant at that he knows. to assure requirement designed an waiver is express no normal Accordingly, reason for with the appears interfering operation of section 996.4

B. The trial agreement court’s error in to order disclosure refusing between the Colman ’s prosecution attorney exchange and Colman ’s for testimony beyond harmless reasonable doubt. trial, occasions defense counsel stated on several

During for some agreement and Colman’s had entered into prosecution attorney 627 P.2d note that in People 4We Cal.3d 375 Barboza 188], between as a the contract “judicially procedure” we held declared rule of criminal there, spent County deducted funds public Madera defender which in essence irrec inherent and appointed public budget, other counsel “contained] from defender’s (Id., con 381.) direct p. “[t]he oncilable conflicts of We were interest.” concerned defender either to sequence public of this arrangement was a financial disincentive for the requiring of interest investigate or declare potential the existence actual or conflicts Here, (Id., discovered employment 379.) of other defender public counsel.” at p. defendant, represented continue disclosed the conflict to court and to who chose to by the office in the early stages prosecution. *16 46

Colman’s The court concluded that not com- testimony. any agreement trial Thus, municated to Colman to the issue of her was irrelevant it credibility. prevented defense from the examining counsel and Colman’s prosecution about the attorney existence and terms such Defendant any agreement. contends that this due him of ruling deprived process. has a disclose all to material evi prosecution duty substantial accused,

dence favorable to an to including relating credibility a of material (1975) witness. v. 14 Cal.3d 406 (People [121 Ruthford 261, 534 Cal.Rptr. 1341].) P.2d of substantial material evi “[Suppression dence on the credibility key a witness is a denial of bearing prosecution due . . .” process (Id., 408.) . Since a p. witness’s credibility depends heavily his motives for must disclose to testifying, prosecution defense and to a to jury inducements made witness any prosecution testify must and also correct false or misleading testimony by the witness any to v. United States relating (Giglio inducements. 405 U.S. 104, 108-109, 763]; 154-155 L.Ed.2d S.Ct. People 92 Westmoreland 554].) Cal.App.3d case, In this to Colman’s according testimony attorney no to inducements were communicated to testify by them Col- prosecutor, manner, in any man that her advised Colman attorney to “have except faith (the trust” in her Colman testified attorney) testify. that she had murder, been with defendant in connection with the charged along but was free on her own that her recognizance. now She confirmed preliminary had hearing been continued numerous times. Colman further indicated in to that she was that response cross-examination would “expecting they take (In fact, consideration to that willing cooperate.” into charges [she was] trial.) Colman were dismissed after shortly against Therefore, Westmoreland, the present case differs from supra, 32, in knew that Cal.App.3d prosecutor witness’s response whether he been question to had offered to opportunity plead guilty lesser offense was false. his Despite knowledge witness’s misleading answer, the in Westmoreland remained prosecutor silent failed cor- Here, there testimony. rect was no to mislead the into attempt believing the witness testified without of leniency. Col- any expectation admitted she candidly man her to be expected willingness cooperate into taken consideration by prosecution.

However, defendant that the argues prosecution and witness’s attorney not be insulate should a witness permitted from any entered agreement He insists testimony. into exchange some notion of the possibility Furthermore, was communicated Colman. leniency her ignorance *17 possible conditions on its have induced her to in a availability might testify manner (See, calculated to the v. Medina e.g., People satisfy prosecution. (1974) 41 of witnesses’ testimony Cal.App.3d Cal.Rptr. 133] [use violated due im- when the for an process testimony given exchange the wit- munity was conditioned on the with testimony’s consistency nesses’ pretrial statements to police].)

We find the of the Westmoreland court this issue: reasoning persuasive “[Wjhenever the district of offers one of several accused attorney persons complicity the same to a criminal offense the opportunity plead guilty lesser offense or attorney concerning in discussions with his engages possibility leniency, and later the as a wit- accused appears prosecution of defendants, ness at the trial of the other and the district both the witness are attorney to the of were made in subject leniency accusation offers trial, for exchange favorable If such a is made at the testimony. charge if there is a issue, conflict in the evidence on this it is to the jury up resolve the conflict and then to of the wit- judge credibility prosecution ness To accordingly. hold otherwise would lead to charges post-trial and, worse, countercharges what is could to the double pave way type of talk which ultimately could lead to the circumvention the disclosure mies of which have evolved to insure a trial to all accused crime.” persons fair of (Italics added.) (Id., 58 47.) Cal.App.3d p. context,

In it seems clear that the “double talk” condemned the West by moreland court referred to the same kind of precisely “undis allegedly closed” to a promise witness’s at issue in this case. As Westmore attorney land recognized, unless the defense is to discover the attorney permitted contents of the arrangement between the and the witness’s attor prosecutor ney, defense cannot the witness’s statement that effectively challenge his is not testimony in return for If disclosure being given favored treatment. is not required, defense will never learn whether the terms of the agree ment itself suggest that the witness must have had some of the ar inkling rangement—as case, would be the if example, promised leniency were on the dependent witness’ in a manner. testifying particular Consequently, when an full testifies for the disclo accomplice prosecution, sure of any agreement to ensure that the affecting witness is required has a complete witness’s picture factors affecting credibility.

Moreover, the “tactical” device of wit- keeping prospective prosecution ness in the dark about the with terms a deal that has been his negotiated counsel suffers from an even more fundamental flaw than an impairment defense discovery rights. As Justice out in v. Brun- Fleming pointed ner (1973) 501], one of the Cal.App.3d 913-914 principal dangers arises whenever an testifies in exchange accomplice influenced benefit is that the “witness be so his by

for an expected and fears that he will desired testify anything promise hopes order Because the satisfaction to obtain a grant immunity. prosecution freedom, is the ticket to prosecutor, prosecution [witness’s] he wishes into the can the words promise immunity, put dangling witness mouth. This when the knows *18 danger especially grave [witness’s] not which he will receive he is absent expected give particular testimony, immunity.” the promised Medina, that, 438, a

It true unlike supra, Cal.App.3d is his attorney witness who is of the terms of the kept ignorant bargain with the that favor- has district does not know for certain arranged attorney on At the same able treatment his in a manner. depends testifying particular time, however, the terms of the unless witness is informed both of the and that his denied so as he long cannot be receipt agreement of benefit trial, at the criminal the witness cannot but fully truthfully help testifies that his own treatment will he does—from believe on how “well” depend his Conse- against accomplice. prosecution’s perspective—in testifying of a insistence that the not be informed prosecutor’s witness quently, inevitable the witness to color terms has the to lead bargain tendency from testimony, pros- his so as to receive the most favorable treatment ecutor. No interest is served such a legitimate practice. public the trial court erred when it held that any agreement

Accordingly, communicated Colman credibility. of her The was irrelevant to issue defense counsel is entitled to the terms of lenient any agreement discover treatment on behalf of a witness. negotiated prosecution however, of the judgment the errors in this reversal

Despite regard, When or the not warranted. guilt circumstance special finding defense, fails de to disclose evidence favorable to the prosecution “[t]he fendant make a and even after must of substantial this showing materiality is made reversal is not if the establishes showing required prosecution [that] the failure to disclose was harmless a reasonable doubt.” beyond (People have 409.) 14 Cal.3d at While the defense should Ruthford, supra, p. have per been a fuller to discover evidence that given might opportunity on both mitted a attack on Colman’s stronger credibility, closing arguments impact demonstrate that the was made well aware of jury possible sides her noted Colman’s on leniency credibility. prosecutor expectation unless “it wouldn’t make sense if she came here and testified for consideration . . . that’s she’s Defense why testifying.” were hoping she effect home to the coercive emphatically brought jury potentially counsel tactics, a murder declaring “they’re holding charge of the prosecution’s bird, her head to she’s like a the tune that testify, they over singing situation, this could Colman’s call.” In assess jury properly credibility her without between testimony specific agreement attorney even (Cf., Cal.App.3d In re Wright the prosecution. would witness not have had [possible perjury prosecution 535] verdict effect on as to make a of not credibility

such an witness’ guilty reasonably probable].)

Furthermore, the defendant with to the respect evidence against charged was While Colman was an important prosecution offense overwhelming. Rose, witness, victim defendant was Ronald key witness who against shot, and run over miraculously survived set on fire being by car. despite considerable Given Rose’s and the amount evi- testimony, corroborating dence, the and the guilt verdict as to circumstance special allegation circumstances, conclusion. Under the there virtually foregone was no *19 to the defendant. prejudice The trial abuse its in

C. court did not discretion the preventing de her eliciting background” Colman as a “professional pros from fense from that her ply titute and reason to Fresno was to her trade. flying for to Colman’s the Prior made motion in testimony, prosecution limine to the defense from from Colman on eliciting cross-examination prevent tes- exclude regarding acts and to certain timony alleged prostitution, nude Colman, taken defendant. Defendant’s by coun- photographs apparently motion, the contending sel evidence of was opposed prostitution ad- both “to show the missible financial situation of the who are parties coha- Fresno,” and “to show her biting” reason for specific going sup- admission of the the show “what porting photographs was” relationship and, for suggest motive bias. The trial court the possibly, granted motion The limine. trial in court reaffirmed both when subsequently rulings claimed that defense door” had for prosecution admission “opened [the] evidence by of such once Colman’s with characterizing relationship defend- wife,” “living which, ant as as man and counsel defense complained, situation, “leaves of a image rather which is platonic, nice certainly from way long truth of what the aptly De- pictures very represent.” now fendant claims that court the trial abused its discretion cross- limiting examination of Colman as a (He with to her activities regard prostitute. does not challenge the nude excluding ruling photographs.)

Permitting defense from to elicit Colman she testimony engaged in acts of prostitution had an obvious potential embarrassing unfairly (Evid. Code, her. discrediting 765.) The impact such degrading § ques- (See tions has been long v. Crandall recognized. (1899) 125 Cal. 129, 134 P. 785].) court, The then, faced question trial in decid- limine, on the motion in

ing was whether the patent prejudicial impact such permitting questioning substantially its outweighed by probative (Evid. Code, 352.) motion, value. In the defense opposing suggested § two in which ways Colman’s be relevant. Defense counsel testimony might first that it suggested be admissible to might show “financial situation” defendant, of Colman and but he disclaimed intention of quickly any into “go[ing] life history.” Defense counsel limited himself to [Colman’s] trying persuade the court that he should allowed to elicit from Colman expected testimony that her Fresno on the purpose flying day murder was “to work the streets” there in order to inference preclude any that she went to Fresno common scheme with pursuant out, however, defendant. prosecutor indi- pointed already that he had cated his statement that opening Colman’s in Fresno to meet presence defendant was a “pure (In coincidence.” his closing argument, prose- cutor reiterated it there.) that was a “sheer coincidence” that Colman was basis, that, On this the trial court if concluded were relevant testimony all, and, value, its effect prejudicial would “far its outweigh” probative it accordingly, granted the motion in limine section under Evidence Code 352.

Defendant’s present claims that the trial court abused its discretion inquiry precluding Colman’s and her regarding activities as a prostitute *20 Fresno, in to purpose going are advanced based reasons other than those defense counsel at by trial. He that have been the defense should suggests to allowed elicit Colman’s in an testimony as to she went to Fresno why to show attempt that she did not for of actually go there purposes prostitu rather, or, tion—but to meet defendant as in defendant’s reply suggested brief, to meet Richard rest on Graybill. Defendant’s argument appears more than nothing that, a speculative cross-exami possibility by vigorous nation, defense counsel have succeeded in witness might down the breaking her exposing of story Fresno for as a fabrication. going prostitution (Cf. v. People (1976) 356].) Cer Cal.App.3d Cal.Rptr. [132 Alfaro it from tainly, appears on the motion that defense counsel arguments not of had thought (nor to break down trying Colman’s is it story apparent indeed, from the record how he he be); learned what her would testimony seemed satisfied perfectly with that wanted the explanation only event, it too. In hear if any it was had another reason Colman possible cross-examination, for to Fresno going that could been have discovered by this, and, defendant failed to of the court of the obvious apprise light effect of the prejudicial testimony, trial court cannot be faulted expected (1961) for it. v. excluding (People Burton 55 Cal.2d 344-345 [11 433]; 359 P.2d Cal.Rptr; Coleman People 8 Cal.App.3d 554]; 728-731 People Lancaster 148 Cal.App.2d 626].) 195-196 P.2d The second defendant for testi- possible ground admitting suggested mony about Colman’s acts of must be for same prostitution rejected reason. He that if her were directed by asserts activities as a prostitute defendant, her a for as then that have been motive acting might “pimp,” biased, untruthful since have giving testimony, “many strong prostitutes feelings resentment and This ground outrage against pimps].” [their asserted relevance rests a about the rela- upon speculative generalization between the trial court well tionships might prostitutes pimps, have deemed insufficient itself to certain outweigh prejudice would result from admission Defense counsel’s momen- testimony. flirtation with the tary notion that the relevant to testimony might show the “financial situation” of Colman and defendant was the same surely thing that Colman suggesting had motive bias her “outrage” that, defendant. isIt in this against noteworthy regard though prosecutor stressed that the did not “seek the defendant from prohibit relevant their testimony stated, ...” and the regarding court relationship essence, that its assessment of Colman’s relevancy activities might change depending defendant’s other upon testimony, defense made no attempt show by defendant’s that the testimony between him relationship and Colman before and at time was killing but amicable. anything Moreover, since ground asserted for admitting testimony was not court, raised before the trial it not be considered now for the first time. Coleman, (People v. 729-731.) supra, Cal.App.3d pp.

D. The trial court did not err admitting tape recording telephone conversation between and Richard while Graybill defendant a fugitive.

Defendant contends the admission into evidence of a tape aof recording telephone conversation between him and Richard Graybill, *21 while defendant awas fugitive, violated his constitutional to freedom rights searches, from unreasonable and privacy, due process.

The facts were established at a on hearing defendant’s motion to suppress. 1977, In (§ 1538.5.) December Graybill (who learned that Colman had with until Graybill defendant) lived she moved in with was being sought by A later, short time he received a call police. from telephone defendant. call, informed the Madera Sheriff’s Graybill County office of the and agreed to lure try defendant into a where he could be position Defend- captured. in ant remained contact with sometimes telephone Graybill, him at calling home other times by at prearrangement (in various public telephones order to minimize the traced). chances the calls 1978, In being January detective, the advice of a Graybill recorded a upon telephone conversation with defendant on his recorder. (which tape tape was also Graybill’s

52 (in by against was admitted its property) subsequently entirety, stipulation) defendant at the trial.5 (1972) People Murphy

Defendant asks us to reconsider our holding 594], 8 Cal.3d 349 503 P.2d which upheld against [105 of con- Fourth Amendment admissibility recordings challenge tape versations, on the made associ- by telephone in-person, surreptitiously direction of law enforcement ates defendant who were at the acting 358-361; (Id., (1971) v. White 401 officers. also United States pp. see 1122]; v. United States U.S. L.Ed.2d S.Ct. [28 Hoffa 408].) 385 U.S. 293 He criticizes as “unpersua- L.Ed.2d S.Ct. cases, the rationale of the admissibility sive” including Murphy, upholding of such recordings. decisions which it

Murphy upon the United States Court Supreme relies that constitutionally expec a defendant has no emphasize protected tation that his will conversation to the police, confidant not reveal a of the confidant’s accuracy corroborates and assures recording merely matter, that, it is later testimony. Defendant counters practical in most such witness’s testimony merely tape “supplements” that, credibility He Graybill’s might situations. out without points tape, this recounting have been such that the would not have believed in Justice is contained Har conversation. An to this apt argument response L.Ed.2d 373 U.S. lan’s v. United States Lopez opinion essentials, argument to its 83 S.Ct. petitioner’s “Stripped 1381]: flaws rely possible constitutional right amounts to that he has a saying without credibility being challenge agent’s or to agent’s memory, For not susceptible impeachment. evidence that is beset corroborating of a conversa version an accurate no other can argument excluding justify risk think the We memory. tion that the to from testify could agent risk included fairly took in a bribe to petitioner agent] offering [the court, faultless whether the offer would be accurately reproduced that defendant tape apparent agreement 5The between them contained a discussion of an (“CW”) Graybill. In the course would return to California to kill someone pistol put which “sure did damaging discussion defendant made a reference to a .45-calibre go through I could hear it right through right through a hole him. It went him because reference body through of the car him. ...” Defendant testified that the after it went prosecutor *22 in Mexico. The intro Graybill to a shootout in which he and had been involved recording request only segment duced the that the of the record tape into evidence with the ing played jury. Defendant and his dealing weapon shooting with the and the be to the objected ground Graybill that defendant had playing segment counsel to the on the already alternatively, if the requested, testified to the relevant information. Defendant that permitted segment played, recording. court the to be it allow the entire Defendant wanted segment tape supported the to be heard in context and believed that the entire defendant’s real, Graybill’s position request feigned. not

53 471], at (Id., or mechanical at L.Ed.2d memory recording.” p. p. 439 [10 omitted; 360.) fn. at quoted supra, v. 8 Cal.3d People Murphy, p.

More as case fundamentally, characterizing merely defendant objects of trust of the acts at a situation in which an associate accused misplaced the of direction the state. The and the federal Murphy prec- made point edent is that the accused in not victim of a govern- such case is a passive has, ment rather, intrusion into his a com- taking zone of he privacy; by confidence, panion into his to em- in essence extended zone of his privacy brace the as to no companion confidences so There is any simply disclosed. constitutional of the a confidence from principle prohibits recipient others, trust in him not breaching reposed to disclose it to including HI, is in police. Murphy (tit. accord with settled federal law Om- statutory Act, nibus Crime (2)(c) Control and Safe Streets 18 U.S.C. 2511 § (d)), as 633.)6 well as (§ California statutes. We no reason applicable see to reconsider it now.7

Finally, defendant to admission of under objects recording tape rationale of v. Hitch 12 Cal.3d 641 527 Cal.Rptr. [117 P.2d in midsentence and admitted recording begins Graybill 361].

he did turn not recorder on until after the tape seconds perhaps Hitch, contends, conversation had Defendant that the begun. by analogy who deputy advised Graybill to record the conversation had a telephone duty recorded, assure that the entire conversation was so that record could not be ing used in a manner. Defendant failed to make misleading court, this objection the trial it now so be considered though, us. (People Welch (1972) 8 Cal.3d 114-115 Cal.Rptr. 225].) 501 P.2d

E. The trial court admitted victim. correctly photographs murder

Defendant that certain charred complains re- photographs depicting mains of the murder victim in the Ranchero were unduly gruesome provides 6Section 633 an exception statutory on wiretapping restrictions eaves- dropping: “Nothing any prohibiting section 631 or 632 shall be construed . . . . . . as policeman ... or deputy any person sheriff acting pursuant ... to the direction of one of the authority, above-named law acting scope enforcement officers within the from his overhearing or recording any they lawfully communication which could overhear or record prior to the effective date of chapter, Nothing this in section or 632 shall construed [f] rendering any persons by inadmissible obtained above-named means of overhearing or recording they lawfully communication which could overhear or record prior to the effective date of this chapter.” I, argument 7Defendant’s tape recording related that admission article violated Constitution, section 1 of the guaranteeing right privacy, California must also be rejected. People 283], Ayers Cal.App.3d appears be directly point, legality recording either telephonic observes: “The or face- to-face parties] (Id., conversations of one of the consent is well-established.” [with 376.) p. *23 54 limited value.

should not have been of their probative admitted light (7a) of the trial “Admission of lies within the discretion of victims photos their by court unless their is clearly outweighed prejudicial value probative 1, 233, 605 (1980) effect.” v. Cal.3d 253 (People Cal.Rptr. 26 [162 Cruz 830].) weigh P.2d Here the trial court understood its clearly duty (com- tendency jury relevance their photographs’ against prejudice 620, 772, v. 388 P.2d (1964) Ford 60 Cal.2d 801 People Cal.Rptr. pare [36 of the victim 892]), and it excluded one of the four proffered photographs (1982) 30 Cal.3d (See in the Ranchero v. Haskett People as cumulative. 841, 640, 776]; (1982) 30 640 P.2d v. Ramos People 859 Cal.Rptr. [180 553, 266, have re- 908].) P.2d We Cal.3d 576-577 639 Cal.Rptr. [180 admis- find no abuse of discretion in their viewed remaining photos on the Defendant would have been cumulative issue they sion. contends that Ranchero malice to the of the testimony regarding burning undisputed court was victim’s Even so we cannot the trial body. assuming, say and the position wrong apparently accepting prosecutor’s argument that de- testimony in the vehicle evaluate body might help jury and a potential extracted the victims’ wallets and searched them fendant in the vehicle. of self-defense based on the of Rose’s revolver issue presence to be The trial court did abuse its discretion in permitting F. three convictions. impeached prior felony him to allowed trial court

Defendant contends that the improperly of all three into evidence cumulative admission impeached unduly of his convictions. prior burglary convictions for of prior

The trial court the test admission properly applied at pages v. 6 Cal.3d Beagle, supra, for outlined in impeachment People 451-454, essentially the three and did not discretion admitting abuse its whether a factor under is Beagle convictions.8 The first contemporaneous It veracity. is conviction on the defendant’s honesty reflects adversely (as reflected in with intent settled that larcenous burglaries accomplished records) (People for this defendant’s conviction be used purpose. 717, 414]; (1982) 132 721 Bishop Cal.Rptr. Cal.App.3d [183 Further, we 172, 286].) Keating 118 Cal.App.3d Cal.Rptr. counties for in three think fact that defendant was convicted burglaries more or of an ambitious premeditated less contemporaneously suggestive ought conclude the dishonesty reasonably which the court could were The convictions be aware. The other factors also to admission. point Const.) (§ Proposition applies only prosecutions I of the Cal. 8Since art. (June 1982), apply crimes committed on or after its effective date it does not to this case. 149].) {People v. Smith 34 Cal.3d P.2d *24 recent,” while the instant offenses took “comparatively place 1977. There is of as- no that the involved the sort suggestion burglaries is, offenses, saultive conduct that do not they was central to the instant And, a close defendant “present to the current analogy finally, charges.” not deterred from Beagle so the fourth factor identified testifying, inapplicable.

We are not that the insensitive to the concern defendant expressed admission of all three have him to convictions well burglary depicted However, as an “habitual on offender.” defendant did object cumulativeness, ground of the about the arguing only dissimilarity Welch, offenses to the prior offenses. 8 Cal.3d at present (People supra, 114-115.) pp. we trial court are that the Consequently, unprepared say convictions, its abused discretion in all three es- admitting prior burglary convictions, in view of be pecially of the contemporaneity might seen as shedding on the extent of defendant’s light dishonesty.

G. trial court had no correctly right ruled that refuse testify regarding “collateral” cross-examination. assertedly areas during cross-examination, Defendant testified in his own the pros- behalf. During ecutor him version of the interrogated on his alibi and on his extensively circumstances were the cocaine deal in which Bartulis and Rose surrounding alleged He refused to answer a number of these participants. questions, initially later, on Fifth Amendment trial court in- after the grounds formed him that the he would did not on the privilege ground apply, killed if he answered. that he waived of the

Conceding most the protection privilege taking stand 24 Cal.3d Saddler (People that the 130]), 597 P.2d defendant nonetheless contends limited to matters covered cross-examination was not prosecutor’s properly examination, in the direct refused to answer but far afield. Defendant ranged $6,200 the day about which he on the bank account into questions deposited $10,000 Rose he on to gave (which Graybill him defendant testified passed in Sacra with whom he met through Colman); the identities of associates murder; its mento the source of the cocaine supply; of the night of the men in manner of identity smuggler; origin delivery; barbecue; for his “security” suits that defendant testified pinstripe provided attendees of whether the men the identities of other carried machine guns; the means of party; whether the cocaine transaction was completed; cocaine; distribution; delivery of the means of the location of the its prom issory note from Rose between the date of the murder and its delivery counsel; of how

defense extent of defendant’s personal knowledge murder “contracts” are put out.

Examination of the which defendant refused to answer discloses questions all of them the virtually detailed information about sought grandiose direct, cocaine deal that defendant to on with an evident and testified proper of the fabrication. purpose exposing story questions an Other extravagant also came within the broad of cross-examination. The scope permissible had a of prosecution about the identities certainly right inquire partici Sacramento, in the in pants who witnesses to de meeting supposed were alibi. fendant’s Similarly, since there was a between Rose’s and dispute testimony defendant’s the of reasons for Rose’s issuance the regarding $25,000 note, what to it while promissory testimony concerning happened it inwas relevant. the custody Finally, defendant’s was question regarding defendant’s death arose knowledge “contracts” out of properly concerning lived, Colman’s told if her that Rose “he testimony would have to try a contract on him.” the get “Although of permissible scope cross-examination in the the California restricted to of direct ex scope Code, (Evid. 761; Witkin, amination (d), Cal. (2d subd. Evidence §§ 1966) ed. 1204), when a stand and defendant ‘takes the makes general § the denial of crime with which he is the of charged permissible scope cross- Saddler, examination is wide.’ (pPeople very supra, [Citations.]” 679.) Cal.3d p.

H. The erroneous instruction on the murder in special circumstance the of commission a robbery was harmless. of

Defendant contends that trial court an gave erroneous jury instruction on the of in circumstance murder the commission of a special (former 190.2, robbery (c)(3)(i)), subd. which failed to apprise § of all the facts that must be the existence of the proved establish special circumstance. At the time of the on December killing, section 190.2 “The provided: for a defendant of murder in penalty guilty found first shall be degree death or confinement in state for life without prison of in in or more possibility parole any case which one following circumstances has been found ... special charged be true specially . ... ^[11] (c) The defendant was [i] personally present during commis sion of the act or acts causing death, ^[2] with intent to cause death ^[3] physically aided or committed act or death and any such acts causing following additional circumstances exists: ... ^{[1] [4]} murder was willful, deliberate, and premeditated ^[5] committed during the com mission crimes: attempted (i) commission the following [f] (Italics violation Section . . .” Robbery 211. and bracketed numerals added.)

Rather than CALJIC instruction on the giving 1977 revision of the circumstance of special murder in the commission of a trial robbery,9 instruction, court gave jury modified version of the 1979 CALJIC which, death reflecting in section 190.2 the 1978 changes wrought by initiative,10 deleted The trial court penalty most of the required findings. instructed the jury, “If find the Defendant this case pertinent you part: of murder of the guilty first must then determine if the murder degree, you was committed under the circumstance: the murder was following special willful, deliberate and and was committed the com- premeditated, during mission or attempted commission of violation of Section robbery Code, *26 Penal doubt, A circumstance must be a reasonable special beyond proved [ft If have you a reasonable doubt as to whether a circum- special [t] true, stance is it find [|] is true. your duty that it is not In order to find untrue, the special circumstance in this case to be true or charged you must agree unanimously, You will include in verdict on a form which your [f] will be whether supplied the circumstance is or is not true. To special [!] find that the special circumstance referred to in these instructions murder in the commission of it be That the murder robbery, must was proved: while committed the Defendant was in the commission or engaged attempted commission of a robbery.” we with

Although agree defendant that he was entitled to instructions on circumstance of special murder the commission of a robbery of all of the apprised jury section findings required by 190.2 as it read offense, at the time of the we conclude that the trial court’s error was harm less since the made jury necessarily these findings implicitly reaching (See verdict that it did. People Sedeno Cal.3d 721 [112 913]; 518 P.2d Tanner Cal.App.3d P.2d 956-957 instruction that intent did not matter 465] [erroneous crime of arson was harmless since first murder verdicts degree showed intent].) finding specific

The trial court instructed the that the circumstance jury special which it was murder find true or untrue was was supposed willful, “[t]he special deliberate and death, physically commission of the act or acts murder was committed 9The true, circumstance, each of the revision of premeditated, aided or committed the act or following referred to during CALJIC No. 8.84.1 causing facts must be ^[1] [commission] these instructions 2. That defendant was personally present death, proved: provided, acts [or] ^[1] 3. That as murder in causing [attempted [f] 1. That the pertinent part: defendant, commission] death, commission of a robbery, murder with intent to cause “To find that the ^[1] of a robbery. was 4. That during the willful, of. committed “while the defendant 10Section . . ^[1] Robbery . . . .” 190.2, subdivision (a)(17)(i) was engaged now identifies as in or was an accomplice in the commission special circumstance a murder deliberate and premeditated committed the commission or during was (Italics added.) commission of ...” Defendant attempted robbery. urges, however, that the find the circum- subsequent special instruction—“[t]o stance ... it must be that the murder was committed while the proved: Defendant commission was in the engaged commission of a attempted have be robbery”—might to the that is all that must suggested jury proved, in a resulting perceived conflict in the instructions. No real occasion for existed, confusion The latter instruction does not though. say only fact that the murder commission was committed in the of a robbery must it proved; merely reiterates the need for a that the murder finding was so committed. In circumstance true, that the finding was special allegation the jury found specifically “that murder of Bruce P. Bartulis [sic], willfull deliberate and and was premeditated, committed personally commission during commission or of the crime attempted [defendant] Moreover, ...” robbery. in his. accu- prosecutor closing argument rately informed the in this “You’ll have to determine whether regard: circumstance special circumstance is true or not. The special alleged is willful, that the murder was deliberate and it and was com- premeditated, mitted during commission or commission of a attempted robbery, [f] *27 Now, order, course, circumstance, of to find that have to special you find what is called . . .” It premeditation. is that ordinarily jurors are presumed intelligent of persons capable and all understanding jury instruc- correlating tions that are given. (1979) v. Coleman (People 89 Cal.App.3d 407]; v. Romo Cal.Rptr. (1975) 47 Cal.App.3d 684].) correct,

Defendant is when he the though, jury that was complains the apprised by instructions that the of circumstance murder in special the commission of a (1) also robbery he was required proof “personally committed, when present” the murder was he aided or “physically com- mitted” the killing, he did so death.” “with intent to cause Never- theless, this error was harmless because the necessarily resolved jury each of the noted, issues foregoing to defendant. As adversely previously the jury’s special finding states that the “was expressly murder personally com- .,” mitted . . by and the the also found to be true allegation [defendant] that defendant a firearm” in “personally the commission of the mur- use[d] der. These reflect the findings necessarily conclusions that jury’s was personally present murder during commission of the and that he aided or “physically committed” the lack of a killing. Despite proper instruction, the jury’s explicit findings defendant “personally commit- murder, so, fantastic, ted” the and used a firearm in render doing not mere- ly “improbable,” defendant’s that the have speculation jury might believed that Colman did the and defendant was shooting a merely passive accom- who armed plice himself later during of the asportation victims’ wallets. Finally, first murder verdict does not itself though degree show jury determined that defendant intended to cause Bartulis’s death, it may since been have based on felony-murder theory, special willful, that the murder finding was Those deliberate does. premeditated terms were defined “The word instructions first murder: degree intentional, ‘willful,’ instruction, used ‘de this means The word [f] liberate’ means formed arrived at or determined as a result of upon careful thought of considerations for and weighing against proposed beforehand, course action. The word means considered ‘premeditated’ If find you clear, that the killing preceded accompanied [t] kill, deliberate intent on the part of defendant to which was the result of deliberation and premeditation, so that it must have been formed upon reflection pre-existing and not under a sudden heat of or other con passion deliberation, dition the idea precluding it is murder of the first degree, The law does not undertake measure in the length units time [f] during period must it can thought before into pondered ripen an intent to kill which is deliberate and truly The time will premeditated. circumstances, with different vary individuals and under varying [f] time, test not the true is duration of but rather the extent of the reflection. cold, A calculated and decision judgment be arrived in a short period time, but a mere unconsidered and rash even it impulse, includes though kill, an intent not such deliberation and an as will fix premeditation killing unlawful as murder of the first degree, To constitute a deliberate [f] and premeditated killing, slayer must and consider the weigh question and the reasons killing and, for and against having such choice mind he consequences, Thus, decides to and (Italics added.) does kill.” *28 murder, a commit “willful” the actor must to kill. (People an intent possess (1959) 716, v. Gorshen 51 Cal.2d 492].) 730 It been held P.2d has [336 a that determination a that was is not the killing deliberate and premeditated of a 731-733; of equivalent malice. v. finding (Id., People Horn pp. (1974) 290, 12 Cal.3d 516, 1300]; 298 P.2d v. People 524 Cal.Rptr. [115 Sedeno, supra, 10 Here, Cal.3d at we are concerned 722.) only though, p. to with intent kill. willful, That a deliberate and jury premeditated verdict of murder necessarily in v. People embraces a was recognized such finding Sedeno, Sedeno, supra, “In trial to an instruc failing give court erred sua sponte (10 tion to diminished manslaughter due involuntary capacity. Cal.3d at 720.) have p. Such an would required jury spe instruction cifically determine an had acted without intent to kill whether the accused and malice. The error as to the intent to kill question was harmless because the second murder without jury degree had instructions on received 1 repeated 1It does not were not in connection the special matter that these definitions with jury (See was told to circumstance consider instructions as a whole. instructions. 606, People (1965) 96].) v. Cal.App.2d Cal.Rptr. Shaw 623 237 [47

60 theory by necessarily rejected and had specifically intent to kill an 721.)” v. (Id., (People at p. murder. degree verdict returning of first 436, 650 P.2d 307, 335-336 (1982) Cal.Rptr. 32 Cal.3d [185 Wickersham added.) 311], italics concerning instruct the sua jury sponte required was not The trial court

I. theory. robbery” “incidental circumstance must be finding that the special argues Defendant sua to instruct sponte trial court failed because reversed of a does robbery” “in the commission of murder circumstance special as was held robbery, an “incidental” accompanied to a murder not apply 1, 1, 61-62 609 P.2d (1980) Cal.Rptr. 27 Cal.3d Green [164 v. People that the have found jury might in this case not conceivable It 468]. were taken only the victims’ wallets finding support here, Green’s “incidental rob facts On the presented identities. their hide characterized as general principle cannot properly doctrine bery” before the court” from connected with the facts “closely openly law (See v. People could arise. Robertson to instruct duty sponte a sua 77, 279]; P.2d v. 21, People 655 St. 52 Cal.Rptr. Cal.3d 33 (1982) [188 166, 390]; 524, 463 P.2d People 531 Cal.Rptr. 1 Cal.3d (1970) Martin Sedeno, 720.) at p. 10 Cal.3d supra, v. assistance counsel at the deprived was not

J. effective Defendant phase. guilt contentions claimed concerning unrelated inef several raises Defendant of his trial. during guilt phase counsel of his trial fectiveness defendant representation, must constitutionally inadequate establish To manner to be act in a expected failed to rea counsel that defense show advocates, (1) and that as diligent coun acting attorneys sonably competent of a the withdrawal potentially merito or omissions resulted acts sel’s that a determination defense, (2) reasonably probable it is more rious failings. absence of resulted would have counsel’s favorable 425 23 Cal.3d Pope eople (P Fosselman 1]; Cal.3d A.L.R.4th P.2d *29 1144].) He has not succeeded in P.2d so. doing 659 Cal.Rptr. that the error on instructing concluded have already We in the commission of a robbery of murder was harm- circumstance special counsel’s failure to the correct defense instruction bring Consequently, less. of the court did not withdraw a meritorious de- potentially attention to fense. that his failure to move to a set aside information holding

Anticipating his claim of 995 barred ineffective assistance of section counsel at the under concluded, (as ante), con indeed we have preliminary hearing tends that a motion. reasonably counsel would have made such competent defendant, conflict, The record shows chose to with of the knowledge defender, be at the represented preliminary hearing by sought public other counsel at a only later Even that defendant’s silence stage. assuming 21, 1979, June to constitute an effective hearing is sufficient waiver, we cannot exclude the counsel decided strong simply possibility aas tactical matter that nothing through would be served another by going of the preliminary hearing light strength (particularly answer) defendant was held to about further upon bringing delay trial. Where tactical considerations counsel’s might explain omission, basis, claim and the record does not illuminate its a ineffective assistance counsel is more made a for habeas petition appropriately 426.) 23 Cal.3d at corpus. (People Pope, supra, p.

Defendant also his counsel’s failure to asserted challenges adequately cross-examine Colman. He demonstrated his in- suggests that his counsel for competence by to the court valid failing grounds suggest admitting testimony about Colman’s as a her activities reasons for going prostitute Fresno of the murder. that tactical day it reasons Again, appears well might decision not to assert the explain attorney’s grounds now For a suggested. tactical reason can example, certainly be inferred for coun- failure to sel’s seek to extract from Colman that her testimony real reason to Fresno was flying to meet defendant kill pursuant plan Rose case, Bartulis. In any (and, evidentiary objections inferentially, argu- ments support evidence) admission are generally matters of reviewed properly (See tactics habeas People Lanphear corpus. Cal.3d 689].) P.2d Colman, his

During cross-examination of defense counsel asked her if she with the testifying were knowledge she said everything that day could used against her. Colman be that she responded knew her attorney would there to her when be she went to court in represent February. Defendant claims that his counsel now should have asked Colman whether she gave prosecution statement under an informal agreement that “the statement never be could used her and in against her,” the prosecution of notwith- her at the standing testimony preliminary hearing that she had not been any immunity by district attorney’s office. promised Defendant’s argu- ment based on appears faulty that if premise Colman repeated es- the same at the sentially story trial as she did in her statement for the the trial testimony could not be used prosecutor, against her. There is noth- *30 in the record to such an ing support interpretation the purported agree- ment.

Finally, defendant contends that would have cross- counsel competent examined Colman more about have to the closely what might happened can which and gasoline she Rose testified defendant over the Ranch- emptied ero and its Colman testified that she did not see it when defendant occupants. car, Moreover, returned to the and no can was found at the scene. gas trunk, of the Ranchero was found in the cap leading investigators lying first to believe that the into the gasoline compartment poured passenger have been A hose was might evidently out of the tank. siphoned gas siphon found in tactical the record vicinity. Again, possible does preclude lack of reason for not Colman’s further. pursuing question By accepting an an occasion for the explanation defense counsel discrepancy, preserved and in to the argument story Colman’s jury against credibility favor of the “Gas cans don’t existence of some alternative explanation: [|] . . . hose and the gas did find that the disappear. police] siphoning [The of the was off. I hose is cap pickup very significant that the expect siphon off, and the gas cap being premeditation those are an indication whom by event, ever was there.” In to determine it is any impossible [sic] from the record whether further have extracted cross-examination might any different witness, claimed, from testimony that she did simply, who not know what happened the can. for reviewing avenue Again, proper this claim of choice, inadequacy, based on is habeas matters of tactical corpus.

II. Penalty Phase

At the penalty phase all of the evidence introduced proceedings, prosecution related to the “criminal factor of other aggravating activity.” (Former 190.3, (b).)12 subd. friend, § Richard defendant’s former Graybill, testified about three incidents that fell into this allegedly category: “CW murder plan,” fabricated plan Graybill, which police defendant ostensibly to return to agreed California to kill who had person “snitched” on in the Graybill (2) the in which past; “solder defend- plan,” ant told Graybill that he intended to time in the obtain some future money $45,000 by borrowing a load of against solder he had stolen thereafter him killing who loaned people the “industrial bur- money; in which defendant him rob a glary plan,” asked Graybill help supply and told shop Graybill security he—defendant—would kill the guard. In addition to two Graybill’s introduced letters testimony, prosecution 190.3, (b) provision except 12The current version of section subdivision tracks the former activity minor former to criminal “which provision for one distinction. Whereas the referred expressed attempted implied or use force or or the use violence or the threat involved violence,” provision speaks activity the current “which involved force or criminal use express attempted implied use of force or violence or the or threat use force the use or violence.” *31 written defendant from the Utah in which defendant so- ostensibly jail, licited criminal acts an who accountant and four witnesses against case, were the testify for defendant’s own this prosecution including mother. The prosecution presented no other evidence the penalty phase.

In his con- closing argument, the the should stated that prosecution jury sider, as aggravating factors of the death warranting penalty, imposition both this of evidence other and circum- criminal “the nature activity of (Former 190.3, stances the coun- present (a).) offense.” subd. Defense § sel no presented but to re-examine its mitigation, jury asked the verdict of give of reservations. guilt defendant the benefit any lingering The trial A. court had no instruction on what duty give clarifying “the meant nature and circumstances the as a present of offense” factor in deciding whether to the death impose penalty. Former section 190.3 provided the trier determining penalty “[i]n of shall take fact into account any of the if relevant: factors following [t] (a) The circumstances of the crime of which defendant was convicted in the present proceeding of existence circumstances any special found to be true . . . .” accordingly instructed: “In which is to determining penalty Defendant,

be imposed you shall consider all the evidence has been received during case, any part the trial of this except as you instructed, consider, account, hereafter You shall into [f] take and be [if] guided by following factors if (a) The applicable: circumstances of crime which the defendant was convicted in the present proceeding and the existence of any special circumstances found be true. ...”

In his closing argument, assured the that “it’s prosecutor jurors per- fectly proper you to consider appropriate the horrible manner in which the Defendant executed one victim and tried to execute the other.” later, A little he told them: “Now with the circumstances regard crime, as I say, you can consider the manner which the crime was exe- cuted; can you consider the fact year Defendant shot down 26 old victim, Bartulis, Bruce who was consider prime his life. You can that the man’s life was snuffed out for . . . .” money

Without citation to that the trial defendant authority, suggests had court a sua on “the nature and sponte duty give the instruction circumstances present offense” a to inform jury clarifying gloss that its penalty determination must not be based on that are “common facts factors, to all homicides.” the consideration of such Permitting *32 “emotional in the result “irrational” based on argues, may jurors’ decisions insists, decision, the reaction to facts of death The defendant jury’s alone.” the case before “should be made on basis of the of the characteristics unique .” the . . . court by

Defendant’s of the process reveals a basic argument misunderstanding law The which the supposes penalty. the will determine the jury appropriate answering factors outlined in the death the guide statute13 penalty jury two crime basically (1) questions: is it the belief that “community’s is] [the an affront be so to grievous response may that the humanity only adequate of the death?” U.S. penalty Georgia (1976) 428 (quoting Gregg so, 859, 880-881, (2) if L.Ed.2d 96 S.Ct. opn.)); (plur. 2909] there . . are nevertheless of and record . the defendant’s character “aspects call for a Who Dies (Gillers, which less severe Deciding penalty?” 438 U.S. 129 U.Pa.L.Rev. Lockett v. Ohio quoting 973, 990, While the L.Ed.2d 98 S.Ct. opn.).) (plur. 2954] determination is on the individual circumstan- penalty ultimately dependent case, aof fact human ces the that the defendant’s crime was to kill another being cannot be withdrawn from consideration comprehensibly the jury’s how the determining an affront to was committed “grievous by humanity” defendant. comments

If defendant is that the arguing prosecutor’s encouraged to inordinate and the “horrible give the attention to the victim’s jury youth in which the and tried to execute manner Defendant executed one victim other,” too, the then that on rejected ground must argument, to and seek waived his failure an object defendant such objection Green, supra, when comments were made. (People admonition 34.) at p. Cal.3d er

reasonably violence, awas another tively minor. [H] use lawof accomplice though age [f] circumstances [f] 13The appreciate influence (e) (b) or of the defendant the existence not the participant attempted use of force Whether it person, 10 factors identified in section 190.3 at the [fj believed to be a moral impaired as a result mental disease presence (c) of the extreme mental [f] or not the offense was committed Whether or not the offense (j) Any other circumstance criminality legal in the defendant’s homicidal offense and (g) Whether any special crime at the time of or excuse acted absence of of his or under extreme which his or not at the time of or emotional disturbance. circumstances found violence justification of criminal participation conduct or to conform the defendant was convicted crime.” crime, or the which was committed duress or under activity or extenuation [t] conduct in the expressed under circumstances or the (i) Whether extenuates the offense to be true commission time of the murder or affects the defendant [*|] or his consented while the defendant for implied (d) the substantial conduct or not the of intoxication. his pursuant to Whether in the gravity capacity conduct, threat to the offense which the defendant to the which present proceeding the homicidal act. defendant was or not the victim were: of the defendant to Section 190.1. [fl domination of requirements involved the use ^[1] crime even (f) was was rela “(a) force (h) The Wheth under The an or B. The trial court erred in doubt instruction failing reasonable give ” regard other activity. “criminal

At the conclusion of the the trial court instructed penalty phase, defendant, that, it determining penalty impose take should into account enumerated factors mitigating aggravating *33 190.3, in former ab (b): section “The or subdivision including presence of sence criminal use or at the defendant which involved the activity by use of force to use tempted or violence or the or threat expressed implied criminal force or violence.”14 The under this to be considered activity pro vision does not include of crime of which the circumstances the “[t]he 190.3, (Former defendant was .” convicted . . . present proceeding § (a).) subd. were not told other crim- jurors could consider evidence of they (former 190.3, activity

inal a rea- (b)) “beyond subd. if found only they § sonable doubt” that defendant had in such This omission activity. engaged Robertson, 53-55, was error under 60- People supra, Cal.3d pp. and Stanworth (1969) 71 Cal.2d 840-841 error, 457 P.2d Before and effect of this determining scope 889]. however, it is to determine what conduct have con- necessary jury may 190.3, to sidered be other “criminal under former section subdi- activity” (b). vision 190.3, C. Other under section subdi activity” “criminal former (b)

vision must a statute. demonstrate a violation penal of In his presented closing argument at the penalty phase, prosecutor those factors aggravating set forth in former section 190.3 provided basis on which he of death. With believed a verdict jury should return to 190.3, former respect (b), section told the jury subdivision prosecutor it could consider “criminal of other of three incidents separate These activity.” incidents which were based they and evidence upon (1) are: the tape recording a conversation between defendant telephone and Graybill, admitted in which defendant to during guilt agreed phase, execute with plan Hunsucker) (hereafter Graybill (Don to murder “CW” “CW Murder Plan”); (2) the de- penalty phase testimony Graybill fendant asked him Jose, in the in San help burglary supply shop which during defendant would (“Industrial kill the security guard Burglary qualified 14The trial court pursuant this language factor the further of former section 190.3, cautioning the jury “not activity by to consider” evidence of “criminal which defendant did not violence, involve or attempted the use or use of force or which did not involve the express[ed] implied fact, threat to In this provision use force or violence.” provides of the statute that “no evidence activity. shall be of such other admitted” criminal Bill Plan”); written to a letter phase, introduced at the penalty California, while in a Moyes by defendant Utah extradition jail awaiting later who defendant murder four sought apparent people Colman, trial—Rose, defendant’s against testified defendant at Graybill, mother. incidents,

In addition to these three at the introduced pen- prosecutor in the evidence of: while alty phase another letter written defendant California, Bill jail Utah extradition to in which asked awaiting abduct, beat, $15,000; accountant” obtain Moyes threaten “the (2) the release testimony Graybill that defendant told him that upon from he would use a he as collateral prison truck load of solder had stolen $45,000 loan who the money and would then kill the lent him people Plan”). that these (“Solder While the did not to the prosecutor argue *34 sec- incidents evidence of under former activity constituted other criminal 190.3, on defendant (b),15 subdivision he served notice tion had previously this that was the basis would introduce this penalty phase which he upon evidence.16 could not that activities many alleged prop-

Defendant contends of these under activity be of other criminal considered the as evidence erly jury 190.3, the did former section subdivision because evidence (b), presented answer, In respondent not demonstrate the commission of actual crimes.17 to an actual that need amount asserts evidence of other not activity criminal we Accordingly, order to be admissible factor. crime as an aggravating as considered other first address the issue of what be may properly conduct 190.3, (b). former subdivision activity criminal under section cases, de- of past Defendant relies on the rulings language implicit statute, to his before the enactment of the support cided 1977 death penalty “criminal activity” that evidence of admitted pursuant contention other 190.3, com- the actual (b), former section subdivision must demonstrate choice ter- Legislature’s mission a crime. The the argue of this second closing argument, prosecutor 15In his the not discuss the content did pro merely but evidence his character. letter referred to “letters” as defendant’s (the to kill plan people secutor referred to loan from he intended defendant’s obtain a discussion, Plan”) (See post, at crime. part “Solder as of the of the instant circumstances 73-74.) pp. 190.3, of the provide notice pretrial 16Pursuant section must prosecution to former the above, aggravation. noted it to introduce in In addition to two incidents intends he notice that provided and the trial court with prosecutor in the instant case defendant to the incidents he aggravation evidence of the three characterized would introduce in activity.” “other criminal case, supple were to submit parties requested argument present 17After oral in the and related issues. briefing mental on these or minology—specifically, activity,” “criminal rather than crimes” “prior crimes,” “other of relevant language past decisions—demon- judicial strates that evidence of other criminal need not amount to the activity actual commission of a crime as an factor under admissible aggravating statute. The legislative history does respondent’s position support Legislature intended from of these decisions. depart precedent Rather, below, 190.3, as we discuss history former section subdivi- (b), sion demonstrates only choice of terms was in- Legislature’s tended to be broad to include sufficiently crimes

has not been convicted.

It was not until 1957 that were established to separate procedures deter- mine guilt 2, in death penalty (Stats. cases. ch. penalty § 3509-3510, pp. amending as amended Amendments to the § 1873-1874, Codes 457-458.)18 190.1, ch. Former pp. section estab- these lishing procedures, provided in relevant “Evidence may be part: pre- sented at the further on the issue of of the proceedings circumstan- penalty, crime, ces surrounding of the defendant’s background history, and facts in aggravation mitigation penalty.” This provision was interpreted to include defendant’s or “other” “prior” *35 Jones, (See crimes. People v. 52 Cal.2d at supra, 647-648 pp. [“other crimes”]; People 88, Robillard 167, v. (1960) 55 100 Cal.2d Cal.Rptr. [10 295, 358 P.2d 83 Bentley crimes”]; A.L.R.2d v. People [“prior 1086] (1962) 458, 58 Cal.2d 685, 460-461 374 P.2d Cal.Rptr. [24 645] [“crimes” committed after the murder]; 70, People v. Pike (1962) 58 Cal.2d 94- 664, Cal.Rptr. 95 [22 372 P.2d of these 656] [“another offense”] [each 1957, cases, 18Prior to penalty jury death single guilt a as to returned verdict penalty, and the evidence pertaining generally to both was limited “facts circumstan attending ces Barclay (1953) commission of the (People offense itself.” v. 40 Cal.2d 146, 321]; 749, 157-158 P.2d (1957) see People [252 also v. Friend 47 Cal.2d 763-764 463]; People 636, (1959) 577]; P.2d v. People Jones 52 Cal.2d v. [306 646-647 P.2d [343 137, Terry (1964) 605, 61 Cal.2d 381].) Cal.Rptr. 142-145 P.2d This 390 court criti [37 procedure this cized incongruous compared when to the administrative discretion then parole accorded boards under the noncapital punish indeterminate sentence laws to fit the Friend, perpetrator crime, “to ment merely (People supra, of the the crime.” v. 47 763, p. 7.) at fn. Cal.2d As tailoring punishment Justice Schauer observed: “In for most controlling agency offenders study person. has the complete benefit of the In the story whole life the particular incident, controlling crime is an one for the time being, only probably, but one of many reaching ultimate the board considers in its conclu seems, therefore, sion. It incongruous degree jury that in case of first murder con ceivably may ment, given the responsibility selecting imprisonment punish life or death as making but in bemay enlightenment determination denied the full measure of which for punishments less drastic {Ibid.) is available to the administrative board.” We suggested that scope pertinent punishment “[t]he character and evidence which should be received in a case jury wherein required to fix penalty, subject is a which could legislative well receive (ibid.) attention.”

68 cases 190.1 on the basing language this of former interpretation § 105, statute]; (1963) 129 60 Cal.2d see also v. Hamilton People [32 61 4, crimes”]; Terry, supra, v. People 383 P.2d Cal.Rptr. [“prior 412] acts”]; (1966) 63 Cal.2d at 143-144 v. Mitchell People pp. [“criminal crimes,” 805, 371, Cal.2d 815-817 409 P.2d Cal.Rptr. [“other [48 211] 790, 813 offenses”]; (1969) 70 Cal.2d People “other v. Tolbert [76 445, on the 452 P.2d case Cal.Rptr. [“prior relying 661] crimes”] [each law to permit proof above-noted case section 190.1 prior interpreting crimes during phase].) other penalty the ele-

The trial had no instruct the about court sua sponte duty jury at of all been introduced the penalty ments of the crimes that have 318, 719, v. Tahl 65 736-738 phase. (People Cal.Rptr. Cal.2d [56 467, 356, 246]; 423 367 Nye (1969) Cal.Rptr. P.2d v. 71 Cal.2d People [78 it However, could 395].) 455 P.2d had to instruct court crimes of such other “consider evidence of when the commission only other Stanworth, v. supra, crimes is doubt.” beyond (People a reasonable proved 840; (1969) 71 Cal.2d 71 Cal.2d at also v. McClellan p. People see therein.) Evidence 871], 804-805 and cases cited 457 P.2d Cal.Rptr. if even the defend- of other crimes could be introduced in the phase penalty Mitchell, v. supra, (People ant had not been of the crimes. convicted 815-816; v. 59 Cal.2d Cal.2d at Ketchel see also pp. People Tahl, v. Cal.2d at 394]; supra, 381 P.2d People 734; 366-367.)19 at p. v. 71 Cal.2d People Nye, supra, pp. Jones, supra, (see, People Cal.2d e.g.,

In the of a waiver absence of other crimes uniformly 646-647), admissibility pp. (see and relevant was competent on whether the evidence depended 144-145, therein), and, and cases cited 61 Cal.2d at Terry, pp. supra, discussion, sufficient demonstrate com- *36 most the present to significant was never While the latter articulated requirement mission crimes. of actual of “other crimes” deemed such, as the evidence properly from it clear Evidence that 190.1.20 defendant planned section former admissible under 182, 24, 432], Cal.Rptr. 60 191 383 P.2d 19Compare People v. Griffin [32 Cal.2d acquittal. for which defendant obtained an prior crime This of a holding admissible evidence 190.3, by language providing the of former section “in ruling explicitly was overruled activity no criminal be admitted an offense for the prior of which event evidence shall supra, Accord, People Terry, v. acquitted.” was 61 Cal.2d prosecuted defendant and was prior of at evidence a conviction for which defendant pp. (holding inadmissible 147-148 received pardon). Jones, (evidence 646-648 supra, pp. rapes, 52 Cal.2d at of other robberies 20See People v. Robillard, supra, 55 Cal.2d at pp. (evidence 98-100 of two prior burglaries); People and v. defendant at fleeing from which was the time of the convictions; of robberies evidence Pike, (“evidence supra, 58 pp. by Cal.2d at 94-95 murder); of the commission People v. Bentley, People supra, (evi- v. pp. 58 Cal.2d at Pike 460-461 pimping”); of of the offense

69 or intended to another under former commit crime was held admissible mind, section lack 190.1 relevant state of demonstrating defendant’s Tahl, remorse, of guilt or (People of but not as evidence another crime. v. supra, 65 735.) Cal.2d at p.

The and of death procedures status the California penalty subsequently underwent substantial of change, most which is irrelevant to our present 1977, In discussion.21 enacted the death Legislature penalty statute 1977, 4-14, (Stats. 316, which scrutiny. is under our ch. present §§ pp. 1256-1262.) The If 1977 statute in relevant provides part: 190.3. “§ has been found of murder in the defendant first guilty degree, and special been and found be true of charged circumstance has ... the trier fact shall determine whether the shall be death or life penalty imprisonment on without of In the of possibility parole. proceedings question penalty, and the people both defendant by as to presented matter sentence, and relevant aggravation, mitigation, but including, to, offense, limited of circumstances the present the nature and the presence activity absence other criminal which of involved use or or violence or which use of force involved the attempted expressed kidnapping dence robbery, attempted of and of murder of “the commission a service Mitchell, supra, (evidence .”); pp. 63 Cal.2d at People station v. 815-817 of . . attendant guns of battery, possession another concealed robbery, robbery paraphernalia Tahl, People resulting parole); supra, v. of defendant’s 65 pp. a revocation Cal.2d at 732- (evidence robberies, rape, kill); 734 attempt and an killings, People Nye, of other v. supra, (evidence rape, burglary, pp. robbery, 366-367 forgery; 71 at Cal.2d evidence); incompetent latter McClellan, based on People held because inadmissible v. su- pra, (testimony accomplice regarding pp. prior 803-808 five Cal.2d held at robberies uncorroborated); People because phase Terry, supra, v. penalty inadmissible at Cal.2d possession pp. marijuana admissible). conviction (evidence prior of a held 149-150 18, February 1972, by on this 21Section was invalidated ruling court’s 190.1 152, 880], Cal.Rptr. 493 P.2d 6 Cal.3d 628 penalty Anderson that the death I, former 17) under article punishment (present section constituted or unusual cruel § the 7, statute was reinstated with the penalty death on Constitution. November California amendment, adopted by the pursuant people to a constitutional through initiative I, measure, 27. Section 190.1 was subsequently repealed section article adding in 1973 mandatory of a penalty enactment death Legislature’s when certain enumer California (Stats. 1-6, found. ch. pp. 1297-1300.) §§ ated were special This circumstances (Rockwell invalidated in 1976 Superior mandatory penalty (1976) 18 death Court 1101]), 556 P.2d based on the authority Cal.3d five cases Court Supreme construed similar mandatory state States penalty death “the United ground they failed provide of them statutes, invalidating sentencing two *37 death, impose a sentence other than guided by option authority with sufficient stan and discrimination in application arbitrariness against dards of the pen to assure death 153; 428 supra, (1976) U.S. alty. Georgia, v. Florida 428 242 (Gregg [49 U.S. v. Proffitt (1976) 2960]; Jurek v. Texas 428 929, U.S. 262 S.Ct. [49 L.Ed.2d 96 L.Ed.2d S.Ct. 96 North Carolina 428 v. U.S. 280 2950]; Woodson L.Ed.2d 96 S.Ct. (1976) 428 U.S. 2978]; .”) Louisiana L.Ed.2d S.Ct. Roberts . . . 3001] Cal.Rptr. 281, 25 Cal.3d 174 [158 587].) The (People 599 P.2d Frierson statute penalty death followed. of the enactment character, violence, defendant’s or threat to use force or and the implied condition. physical mental condition and background, history, “However, activ- no other criminal evidence shall be admitted regarding use of force the defendant which did involve the or ity attempted not use to use or violence or not or threat implied which did involve the expressed section, force violence. in not activity require or As used this criminal does a conviction.

“However, be ad- no event shall criminal prior activity was ac- mitted for an for which oifense the defendant prosecuted . . . quitted.

“In determining the the trier of shall take into account penalty any fact of the if following factors relevant:

“(b) The or absence presence of criminal the defendant activity by involved the use or of force or or or attempted use violence the expressed threat force or implied use violence.” language

This underwent several to its prior Respon- changes adoption. dent contends that these intent that former changes evidence legislative section 190.3 what “go might former section 190.1 to include beyond” Rather, amount to a crime We merely se. these dem- per changes disagree. onstrate a legislative intent include crimes for which capital been has not convicted. drafted, (introduced section No. 155

As 190.3 of Senate Bill originally 19, 1977) on Jan. “In the Senate provided pertinent part: proceedings either the people on the evidence may question penalty, presented In activity . . the criminal .... prior the defendant as to . defendant’s the trier of fact shall into account take determining penalty (a) criminal factors if relevant: The or absence prior following presence (Italics added.) the defendant.” activity by 10, 1977, Senate, on March amended was subsequently section .. . convictions “prior evidence of defendant’s only admissible render against of force or violence use or threat involving felonies 24, 1977, this evi- March added.) As amended (Italics of another.” person defined as activity,” criminal prior “significant was characterized

dence *38 of force or violence “a conviction the use or threat felony involving for Senate added.) The bill (Italics against person passed another.” in this form. Senate, section 190.3 155 in the

Following of Senate Bill No. passage con- felony amended of a was in the delete any requirement Assembly viction and to refer the defendant activity by to “criminal simply or or involved the use or or violence the expressed use of force attempted 1977, 13, italics (As threat to use amended Apr. force or violence.” implied added.)22 28, Assembly, April

The section was amended in the subsequently 1977, “However, other to add: no evidence shall be admitted regarding not involve the use or activity attempted criminal the defendant which did or implied of force or violence or which did not involve the expressed use section, use force in this criminal activity threat to or violence. As used ” 1977, 9, added.) On the As- (Italics May not a conviction. require does “However, in no event shall amended section to add: sembly finally 190.3 be admitted for an offense for which the criminal prior activity was Bill No. 155 and was Senate prosecuted acquitted.” defendant veto. in this form on over the Governor’s August passed of the term This demonstrates refinement “criminal legislative history felony to include more than a defendant’s convic- activity” capital prior tions, for which the defendant but so broad as to include offenses has the term is meant to include misdemeanor clearly been While acquitted.23 use of force well as offenses the use or or felony involving attempted violence, violence, or the or threat to use force or expressed implied nonoffenses not indicate an intent to include for history does legislative Assembly language provide interpreted 22The Committee on Criminal Justice this “no to be bad on the evidence introduced to show the defendant’s character because restriction prior charges any alleged activity. criminal There no restriction on the use of in which assaults acquitted. have faced and had been Misdemeanor and bat trial Sess.) (Assem. (1977-1978 Reg. review of are included.” Com. on Justice Sen. Crim. teries 20, 1977), 1.) (Apr. p. No. 155 Bill material, language interpret of other the broad of the first explanatory In the absence we and third sen- Assembly analysis qualified the second committee’s to be sentence amended) (as no restrictions on the tences—specifically, provided that section 190.3 then which the defendant was nonfelony activity prior charges introduction criminal or any whatsoever on the acquitted. interpret language preclude We do not this restrictions activity. introduction of evidence of other criminal Assembly before the Senate Legislative amendments 23As Counsel summarized the them, prior criminal they to concur in for evidence of the defendant’s “[pjrovide voted activity expressed implied or the attempted to include use or use of force or violence prosecuted acquitted, rather than to use force or violence was not threat if the defendant or violence.” (Legislative or threat of force only felony involving conviction for a the use File, 79.) Daily May p. Dig. Counsel’s of Assem. Amends. Sen.

72 could not even the defendant be tried. The which inclusion of nonoffenses “criminal under former section 190.3 would activity” as allow the prose- in the discretion selection of evidence to to the present cutor unfettered and would render jury superfluous penalty phase statute’s use of the modify “activity.” Accordingly, word “criminal” reasonable only the statute limits admissibility is evidence that dem- interpretation crime, of an actual commission a onstrates the requirement verified easily established guidelines by legislative under the definitional bodies in this and this court has Significantly, consistently other this jurisdictions.24 applied cases, in but only pre-1977 not also in our interpretation review of death (See legislation. under the 1977 tried People cases v. Harris penalty 679, 623 935, Cal.Rptr. P.2d 28 962-963 of [possession [171 Cal.3d 240] inmates; violation of 4574]; jail deadly by weapons People Easley § v. 868, 885 Cal.Rptr. 34 Cal.3d 671 [196 P.2d [arson 813] Boyd (1985) hire; 653f]; see also 38 Cal.3d 762 § death penalty initiative; P.2d 782] rob- attempted bery].) that evidence of other conclude

We therefore criminal activity introduced to former section 190.3, pursuant phase (b), subdivision must penalty conduct that be of demonstrates evidence limited to an commission of the violation of a crime, penal actual specifically, statute. conclusion, we consider whether incidents,

In this of number light as instances relied “criminal prosecution by activity,” properly under factor former qualified 190.3, an section aggravating as subdivision (b).25 conduct, intent, rather than mere is subject of actual 24Thatevidence of former section Assembly 190.3, (b), supported is Criminal Justice analysis subdivision Committee’s shortly passage. before its analysis This provided Senate Bill No. part in relevant behavior assaultive can be prior “Only introduced evidence prior the area of (Assem. added.) (1977-1978 Com. on Crim. Justice (Italics criminality.” Sess.) Reg. review 2.) 2, 1977), p. (May of Sen. Bill No. by the record this case suggest 25The revealed problems many cases it preliminary inquiry to conduct court advisable trial for the before the penalty phase to prove evidence to is substantial each determine there element of whether the other criminal determination, routinely can be made based on activity. the pretrial This notice intends to it introduce in prosecution aggravation (§ evidence of the 190.3), should be (Evid. hearing jury. Code, 402.) made presence § out of the Once the trial court properly admissible as other (id.,

has 310), what criminal activity determined § an instruction request enumerating particular prosecution “the should other crimes which aggravating circumstances in jury may determining penalty. consider jury . . . [T]he to consider additional not other should crimes in fixing be instructed penalty.” Robertson, 19.) 33 Cal.3d supra, p. (People fn. Whether such other criminal beyond a reasonable doubt is then question activity proven jury. has been fact for the (Evid. 312.) jury Code, If the finds that the evidence does § establish such criminal doubt, it could still evidence, reasonable consider activity beyond a such if appropriate, (a) “CW Murder Plan.” could consider as told the that it evidence of prosecutor *40 190.3, (b),

other criminal under former section subdivision activity “the CW Murder Plan. That is to the say, plan whereby Gray- matter of the Mr. enforcement bill, law to lure people, attempted with acting cooperation the a the defendant back to California scheme wherein defendant was earlier, As noted ahead and murder someone.” this go to planning asked defendant to murder Graybill of a scheme which “CW” feigned was contained in a of a conversation recording telephone between de tape admitted the at during guilt phase fendant and defendant’s Graybill, request. (See 5, ante.) fn. was Graybill

The concede “that since a feigned or the People accomplice to come to Fresno commit a equivalent, agreeing murder for appellant’s nor the authorities Graybill a murder neither were going permit, Graybill, did correctly crime.” Respondent interprets not constitute a applicable “CW Murder Plan” was improperly law.26 the presented to Accordingly, the of other criminal jury activity. as evidence

(b) “The Solder Plan.” testified that Graybill At the phase, told him penalty had he would use a truck load from of solder prison his release he upon in former section under factors enumerated 190.3. any of the other listed jury the should be instructed on whether the question With the elements of respect to Tahl, 736-738, crimes, alleged supra, pp. 65 People Cal.2d at Nye, other supra, only proposition a trial for court has p. sponte 71 at stand no sua Cal.2d duty of all of the other crimes that have to the elements been instruct the as introduced recognizes at not that a defendant for tactical may rule considerations penalty phase. This lengthy overloaded with series of phase want instructions penalty instructions on crimes, perhaps because he fears that such alleged elements of other instructions could on other crimes rather significance such than on result undue the central jury placing in the considerations, light question In of these tactical live or die. a defend- he should of whether alleged ant on the elements of the instruction other requested who an crimes has not However, the prosecution—requests if a defendant—or such an complain appeal. jury informed of the elements of instruction, alleged to have other they are entitled crimes. accomplice, requisite minimum of two feigned persons was a Graybill 26Since (3d 182; Boyce, 1982) Criminal Law (§ Perkins & ed. p. see conspiracy lacking. was confederates is supposed feigned of two if one accom conspiracy [common no holds law adopt Model plice, Penal have amended statutes Code’s “uni 30 states though perhaps (1972) Scott, Law on Criminal pp. § Handbook 461- lateral” La Pave & approach]; 462; 2.04, Conspiracy Cases Marcus, pp. of Criminal 2- § and Defense Prosecution basically adopted “unilateral” 2-14, approach which have [listing 9 states supp. p. 10 agreement defendant’s 5.0391].) to come to Code, it be said Nor can § Model Pen. murder, appreciable since “no frag attempted killing to an California to do the amounted (See People v. Adami accomplished.” ment was [contemplated] crime where murder defendant did no attempted Cal.App.3d [no 544] killing].) to commit more policeman than undercover solicit $45,000 kill the people loan and would then for a as collateral stolen had de- notified had previously him the The money. prosecutor lent had who of this introduce evidence plan that he would trial court and the fendant 190.3, (Former criminal activity. evidence of other § phase penalty however, the prosecutor appeared to the jury, In his (b).) argument subd. instant circumstances that this plan part arguing 190.3,.subd. (a).)27 (Former § crime. the circum- comes within assertion that this evidence prosecution’s in the record. without factual support instant crime simply

stances *41 concedes, to demonstrate the this evidence fails Moreover, as respondent was inadmissible under crime. the evidence Accordingly, of a commission former section 190.3. (a) (b) or subdivision of subdivision either ” (c) “Industrial Plan. Burglary that defendant had asked testified at the Graybill penalty phase in Jose. When Graybill the of a San burglary supply shop in help to him not to about the defendant said security guard, concern shop’s expressed kill The told the that it he would the guard. prosecutor worry, former section as evidence of other criminal under activity consider could asserting plan” part that the “solder was of the circumstances of the crime for which 27In case, prosecutor argued: in the instant the was tried defendant crime, you the manner regard say, to the circumstances of the as I can consider with “Now executed; you can shot down a was consider the fact that the Defendant crime the which victim, Bartulis, can consider that prime Bruce who was in the of his life. You old year for, only would money, basically, purpose out for and the be for snuffed was life man’s money, earlier, he predicted Graybill going Defendant had to five months was mainly as the it, somebody going he money repaying from and then instead of was to kill of loan a get to him. loan, case, you any there never was an effective at least if assume cocaine it was “In this materials, building really anything amount to more it didn’t than a was never there and loan, tried kill the other. . . . person killed one and to Defendant the of aggregating for a few moments the circumstances discuss [sic] like would “I appropriate penalty. things, These suggest penalty that the death I would case know, heard, you. you’ve I’d like to summarize them course, but all you months, Defendant, five planning some such crime for ac- apparently, had been “The spoke getting first Graybill yet he in Chino. He testimony of Mr. when was cording to $45,000.00 killing and then money, couple people worth of from money, some some pay it back. have he didn’t so them simple reason killing. for the The circumstance is the reason aggregating [sic] “Another people who became were real of a swindle and the victims killing the victims he ... he were next door. people be the who just happened These at random. victims his early charm, it as as five thought about knowing along, all as he had with his them conned to kill them. before, going he was along the line that somewhere months factor, as he could out that, as much squeezed he aggregating another doing [sic] “Before occasions, because, on several testimony was that them he killed before of them never, got perhaps, quite money and he more up to come with Mr. Rose asked Defendant Graybill figure of wanted, to Mr. earlier indicated he had because he as much as $45,000.” Mr. that dur- Graybill 190.3, indication (b) subdivision “the defendant’s Jose, potential danger he remove would San ing proposed burglary him.” security of the guard by killing this could by as such prosecution,

While not characterized 653f, (a) subdivision section in violation of a criminal constitute solicitation witnesses, or of one witness of two (b),28 testimony “proved by and/or if However, 653f, since (d).) (§ subd. circumstances.” corroborating of the the commission is insufficient testimony prove alone Graybill’s court, there- the trial crime, by this evidence admitted was improperly crim- evidence of other penalty jury, fore considered improperly activity. inal witnesses. murder

(d) prosecution Letter seeking apparent of four phase copies at the penalty into evidence prosecution introduced while incarcerated (exhibits 20) letters written two California returned to being Utah before county jail Salt Lake City, were letters photocopies face trial. *42 Attached to the copies contained, defend- bearing in which been letters had envelopes original been Since defendant had addressee. name address as the return ant’s inmate, his letters were opened as an a dangerous risk and classified escape one of the mailed. being Only before employee and by jail photocopied characterized was explicitly letters presented penalty phase two during under activity criminal as evidence of other by prosecutor (exhibit 20) contained 190.3, (b). letter section This former subdivision Colman, Rose, and de- Graybill, of murders solicitations of the apparent mother, of murder is a crime Solicitation Hollingshead. fendant’s Barbara 653f, is made (b), by even the solicitation section though under subdivision (§ 778b). California Defendant’s second letter who is outside of person below, referred 19), by (exhibit though pros- discussed explicitly criminal as evidence solicited beat- activity, kidnaping, ecution of other 653f, of section and extortion of “the accountant” in violation subdi- ing, (a). vision 653f, (d),

Section that a subdivision criminal solicitation requires witnesses, one by of two or of “proved testimony witness and cor been roborating circumstances.” This “has requirement regarded as requir at least one witness who or ‘direct’ ing gives ‘positive’ evidence of facts 653f, (a) 28Section “Every provides part: person subdivision relevant who solicits an ... join other to commit or commission robbery, burglary” in the of punishable is by less, imprisonment year by (b) of one or provides: or fine both. Subdivision “Every who person join solicits to commit or another the commission of murder punishable is two, four, imprisonment years.” in the or prison state six innocence, with incompatible that are evidence of corroborating circum- which, evidence, of the direct independent stances tend to show guilt. [Ci- Witkin, 803.) Here, Cal. Crimes (2 p. the testi- § tations.]” witness, an only of of the Utah employee mony County jail, limited authenticity of to establishing copies defendant’s The letters.29 is a fact that writing preliminary must be authenticity before proven (Evid. Code, is admissible. proffered (a)(3).) § subd. Since testimony was employee’s solely limited to county jail this establishing fact, it cannot constitute positive direct preliminary evidence of defend- solicitation. criminal ant’s alleged case, however, we do have “the

In this ... of one testimony corroborating circumstances” witness and required 653f, by section sub The introduction defendant’s (d). jailhouse (exhibit 20) division letter defendant “a witness” within rendered effectively meaning the pro direct vision, “testimony” who about provided the crime of solicitation. 653f, (d) subdivision section The to guard purpose against convictions on the testimony based one person for solicitation who have suspect that the statute danger guards against however, motives. is not present, himself provides evidence of when the accused the alleged crime in corroborate this circumstances evidence. dependent of the letter’s content shows that Examination defendant’s its letter on as to the conduct it ambiguous However, somewhat solicits.30 face is several *43 hearing defendant’s section 29During pretrial 1538.5 motion a to suppress the letters between recording of a conversation Minier, defendant tape Graybill, and and the David Madera, County of the testified Attorney of that in District connection prosecution his with case, gone City Salt Lake of to to interview he had the this letters, addressee of the Bill in Utah State (then Penitentiary), the Moyes prisoner and to attempt a to originals find the he told Minier that had received (a one Moyes of letter copy the letters. of was which 19), destroyed, had been seen, as exhibit but had received, admitted never had or (exhibit 20). letter Minier’s knowledge testimony of the second was admitted not the for controversy, but explain why to any matter originals of the truthfulness were not available best evidence rule. to under the the court with explanation the letter the begins that “Here 30Defendant is the California information. which the business must be dealt order in with.” This is the The letter gives then the names Colman, Rose, Ron Sharon and Graybill, Hollingshead. Barbara Richard Each name description person, address, his or physical her by a followed for directions person. to each as conducting provides “business” The letter pertinent part: ‘Ric’, Graybill go . . . Must Richard first: Two armed men “1. guns with showing tell us, get one will hurt!! Come with and no some him “Freeze one wants you. to talk to Make of, also, car, immeediately knock out. Then [sic] him in our take his get dispose car as ... we will discuss. Suggest squirt . . . a [sic], Colman bottle Sharon with good “#2. amonia a one sprays that single home, not a stream heavy spray, you ... If catch her fine at her make leave a note Ric, Ric, Ric, to talk with Spell ‘Gone home later.’ saying this: you up when to go first says, motion; Yes? Tell her ‘The Las Vegas plan as she the door is in to someone wants could have evidence from which the external factors serve as sufficient of murder. At the time constituted a solicitation found the letter in a Utah extra- written, jail awaiting incarcerated was defendant was letter of Ron Rose and dition to to stand trial for murder attempted California Bruce Since Rose Bartulis. companion, Rose’s friend and murder of detail, had a strong these events defendant about testify would be able to Rose, to at what he had previously motive to more succeed kill specifically, testified, to defendant had an intent expressed “get As Colman attempted. also had if lived. Defendant motives strong Rose he contract” on a long-time letter. friend of defend- Graybill, the others listed his killing at the time of the ant, Colman, companion defendant’s girlfriend law with enforcement and murders, decided to cooperate pros- both had noted, convict defendant. ecution in to arrest and As previously an effort enforcement defendant’s state- notwithstanding Colman with law cooperated be dumb to cross him . . . enough would not because ment to her “she [her], if he couldn’t that he would get he was situation where have in a mother, defendant’s was Finally, Hollingshead, could.” else that somebody with Colman after the commission of the at arrived home when defendant feared, Hollingshead’s testimony defendant at trial con- crimes. Perhaps defendant. tradicted interests eliminate all of in defendant’s these clearly

It was therefore his had chance trial. The fact testify that the they witnesses before defendant in against all witnesses im- were potential victims proposed trial, with the evidence defendant’s combined earlier minent capital witnesses, same provided of these adequate threats some against indepen- 653f, of section satisfy requirements dent subdivision corroboration motive, letter’s directions to (d). “knock apparent In of defendant’s light out,” witnesses tend to support “blast” these conclusion that “nail” and murder. This also supports their seeking req- (See kill malice. express People intent of specific uisite element 408]; 980-982 Cal.Rptr. Bottger Cal.App.3d 840].) 47 Cal.App.3d Gordon challenges to admissibility both his defendant’s We next address *44 are (1) letters inadmissible first asserts because letters. Defendant out, gag, immediately. you say after that. Knock do as you.’ talk to She should nail, car, transport Then if he be to Ric’s lives in . . Ideal would Ron Rose . “#3. leave, Fresno, Covina, airport and if he lives in leave at Ontario Fresno to [sic] West drive Won’t hurt have blood of time [|] at all #3 in car. So schedule gloves times. Airport. Wear #2, PM, (no 2 is, approx days 8:00 AM 2:00 to 3:00 Wait #3. approx. [H] PM ft\ 10:00 more, less) no work, until Hollingshead goes gone Wait her husband . . . about a 'A Barbara “#4. Knock, door, won’t probably open, say Say she but ‘Who’s there.’ ‘Mrs. go hr-: side up his pick welding garage. If opens wants me mask from the she Hollingshead, Sheldon right back, there. says, her If door, and blast she ‘Come around the do it open, it force (Diagram follows.) of through-” be house garage, must 78 of both letters were illegible so could not copies they properly (Evid. Code, 1400)

authenticated therefore did not constitute relevant § 350); (id., (2) alternatively, that he was denied effective § of counsel v. (People Pope, 412) assistance 23 Cal.3d his attor- supra, admission failure to the of his ney’s object letters on the that their ground caused their value to be illegibility probative by their outweighed prejudicial Code, (Evid. 352). effect. These contentions are merit. without § (Evid. Code, In determining admissibility of a “writing” on its 250) based legibility, writing “need not be intelli completely § ... as is long to be without gible enough intelligible relevant creating of or an inference unfairness.” speculation Demery v. 104 (People 814].) 559 Cal.App.3d

While of defendant’s letters words in reproduction rendered some both these words are letters few and their not illegible, critical un- meaning either included, letter. All of the derstanding of each are pages letter handwriting defendant’s We do consider it generally legible. signifi- clerk, trial court cant that the the letters to the reading aloud jury, omitted certain words to be since both appear legible, letters copies were each distributed to juror. 20, the are illegible

In exhibit words to the primarily limited physical Colman, Rose and Rose’s wife. No words descriptions are con- illegible letter’s tained references to or Graybill nor are Hollingshead, any in the directions contained about what is to be done to each proposed victim. 30, ante.) (See fn. words 2 illegible constitute than percent less (Cf., 20. exhibit 117 Stephens 661 Cal.App.2d [approximately P.2d percent tape unintelligible].) recordings 1033] words in exhibit Similarly, illegible 19 constitute less than percent letter. While some of these words are in defendant’s contained direc- “accountant,” what to do tions about to the does their omission not affect (See clear the letter’s fn. meaning. post.)

We therefore conclude that the illegible of exhibits 19 and 20 did aspects not create “inference of speculation (People Demery, unfairness” supra, 559) that have affected their Cal.App.3d p. adversely under Evidence authentication Code section 1400. their admission Nor did defendant under unduly Code as a result of prejudice section Evidence In their to the failing admission of the letters on this illegibility. object *45 defendant’s trial counsel did not effective ground, defendant assistance deny letters of counsel. The were therefore as relevant to admitted properly 190.3, criminal activity (b). issue of other under former section subdivision

79 Defendant next admitted contends that the letters were improperly into evidence because their and Salt Lake inspection City jail copying officials violated the Fourth of under ar Amendment and his right privacy I, ticle section 1 of the California This contention is without Constitution. merit. 2600,

Under Penal Code section the civil California retain prisoners rights of free persons, to the extent that including right privacy, except restrictions are to insure necessary security institutional public safety. (De Lancie 865, v. Superior Court (1982) 31 Cal.3d 868 Cal.Rptr. [183 866, 142]; 647 P.2d 907, (1982) cf. 32 Bailey Cal.3d Loggins [187 575, 654 P.2d Cal.Rptr. to freedom of Procunier v. [right press]; 758] 224, 240, 416 U.S. Martinez L.Ed.2d S.Ct. 1800] federal law, constitutional mail justified [under censorship prisoner only if it furthers an order, important governmental (such interest as security, rehabilitation) unrelated to Defendant con suppression expression].) tends that he had a reasonable letters expectation concerning sent privacy from prison, relying heavily the Court of in De Lancie Appeal opinion Court, v. Superior which was (31 our superseded by subsequent opinion 865) in Cal.3d the case. Lancie, that,

In De we held interest, in the absence of any security con- versations between pretrial detainees and visitors could not be monitored solely gather evidence to be used at their trials. We upcoming expressly declined base our decision on federal or state constitutional grounds, it sufficient to finding rest it on section provides generally imprisoned in person state “be of . . . such prison may only deprived as is rights, necessary order to for the reasonable provide security . . . institution and ... the public,” and section which designates certain retained civil rights, have visits.” including right personal “[t]o We reasoned that pretrial detainees are entitled to at least the same protec- (31 Cal.3d at tion. 871-872.) pp.

However, the rests, I, statutes which De Lancie upon and article section Constitution, 1 of California were to the Utah in which inapplicable jail was detained. Defendant that evidence obtained suggests that would California, manner not be proper even if valid under federal the law obtained, law the state where it was should be excluded in California courts. We the same rejected v. Blair argument 25 Cal.3d 640 738], P.2d that the holding purposes rule exclusionary would not be served such an extraterritorial Since the seizure in application. that case occurred, where legal it no California law enforcement personnel exclusion participated, would have no deterrent effect in either “serve[d] jurisdiction.” (Id.., 656.) Nor p. *46 80 rule, the in- judicial the other accepted purpose preservation

did exclusion, “[ujnlike the situation that arises when a since require tegrity, state, [by occurs in this the venture contrary police seizure California law lawless, the other not and the therefore government state] [was] [was] {Ibid.) from or as a law-breaker.” acting not conduct illegal profiting violated the Fourth Defendant’s claim that the of his letters inspection letters were inspected Amendment is also without merit. Defendant’s reasons that authorized such inspections security pursuant regulations indications that without notice to the if there were affirmative he prisoner are generally or an risk. Such dangerous inspections was presented escape (9th Cir. (See 1977) to be United States v. Hearst reasonable. acknowledged 1331, 1345; Cir. (D.C. 1982) F.2d States v. Hinkley United compare F.2d 130-132 violated by guard prisoners’ papers [inspection institutional prac- Fourth Amendment because not in accord with established tice, not a threat attention did excerpts suggest captured guard’s activity penal of criminal considerations implicate peculiar “special system”].)

However, him into a “sense of defendant officials lulled claims jail be mail would not inspect- that his informing outgoing pseudoprivacy,” intrusion that the official’s Accordingly, argues subsequent ed. the Fourth in North v. Superior violated Amendment under our holding (1972) 8 502 P.2d Cal.3d 301 Court 155], A.L.R.3d informed mail that defendant that his outgoing

It is was undisputed Moreover, read. one of the the manual for inmates being was prepared officials, which rules and regulations, apparently summarized jail jail However, without mail was not monitored. stated qualification outgoing that, mail is not ordinarily while regulations apparently outgoing provide monitored, detainee) if there is (without it notice to the inspected affirmative a security problem. indication that the inmate presents some were read be- administrative officer that defendant’s letters jail explained Furthermore, he risk.” cause was classified as and an “dangerous” “escape monitored, he testified that defendant asked him whether mail outgoing it was not. the administrator that “under normal conditions” replied of an occasion when The administrator nonetheless reminded defendant contents of a letter had testified in a homicide case jail captain regarding from referred written For a definitive answer to his the officer jail. question, defendant “to his rules and regulations.”

The officer’s to defendant’s about answers questions monitoring mail were he told defendant Although that mail was not nor- ambiguous. *47 However, monitored, if he also told him that it was sometimes read. mally defendant “to his rules and followed the officer’s referral actually up then it he have been aware of the regulations,” may jail’s policy appears monitor a detainee’s mail if there indications the de- were affirmative tainee decline to characterize presented security We therefore problem. administrator’s to the defendant as rise to a rea- jail statements giving of sonable man- expectation Additionally, although privacy. prisoner’s ual did no monitoring there was apparently misrepresent jail’s policy, evidence adduced at the perused, that defendant ever suppression hearing of, Therefore, or even was aware the manual. we cannot conclude that had a defendant reasonable of his subjective expectation that contents letters would remain private. the lack

Notwithstanding any of evidence of bad faith or that inspec- tions exceeded in any their under way proper scope defend- regulations, ant asks us to characterize the he inspections unreasonable because have been inadvertently misled believe his letters would unread. pass North, relies, hold; which not upon defendant did so there we condemned a “deliberate” scheme to confidences “secretly marital ... exploit [] the sole of purpose (Italics evidence.” gathering possibly incriminating added.) (8 312; Cal.3d at p. People (1974) see also v. Hill 12 Cal.3d 731 393, 1]; Cal.Rptr. (1981) 528 P.2d v. Jardine People [117 116 Cal.App.3d 907, 914 408]; (1979) 572, Suttle Cal.Rptr. People [172 v. 90 Cal.App.3d 409].) Cal.Rptr. [153

Once the limited properly revealed inspections defendant’s attempt killed, have witnesses there was (who nothing prevent prosecutor informed of appropriately the contents of the letters) from introducing them of at the penalty phase (See defendant’s trial. United States v. Baumgarten, 517 F.2d at supra, p. 1028 [“plain view” doctrine justified copying of dissemination letter to law enforcement officials after proper “scanning” letter]; United Hinkley, 131.)31 States v. supra, 672 F.2d at p. we Accordingly, conclude prosecutor relied on defendant’s properly (exhibit 20) letter as evidence of other activity criminal under former section 190.3, (b). subdivision ”

(e) Letter extortion soliciting “accountant. earlier, As mentioned exhibit 19 consists written by letter letter, while in a Utah jail extradition to California. In awaiting defend case, 31Under the circumstances of this we need decide whether adequate recognition prisoners’ security First or Fourth in the Amendment interests monitoring might mail doctrine, limiting fashioning “plain of a rule view” require the akin to the “nexus” rule objects pursuant (See of a applicable to found the course search to a warrant. (Meyers) Superior Cal.Rptr. 25 Cal.3d 877); Court 598 P.2d Superior Court 1 Cal.3d 157-158 485].) Skelton 460 P.2d Bill beat and threaten the Exhibit ant asks “accountant.”32 Moyes kidnap, to be admissible under stan sufficiently evidentiary 19 is legible general dards and its review and administrators did not violate copying by jail However, or constitutional does not statutory standards. this letter 653f, (d), with section subdivision that criminal so comply requires ” *48 . . . one and licitation witness circumstances. proved “by corroborating “witness,” introduction of the letter While rendered defendant a there is no evidence of circumstances defendant’s di corroborating independent Therefore, rect evidence that tend to show guilt. exhibit 19 was improperly in the as evidence of penalty admitted other criminal phase activity.33 Thejury’s improper consideration several other alleged incidents D. activity, and the trial criminal court’s to a reasonable doubt give failure instruction, were prejudicial.

We have identified two errors in the significant penalty (1) the trial court’s failure to instruct that it could not con phase: 190.3, evidence of other sider criminal under former sub- activity section (blanks words) indicating illegible 32Exhibit 19 reads in full as follows: Misko, “Howdy, “Really good you together, things rolling. see & Bob me feel makes are D_have “By hope you now I gotten together. you jump and I guys want alone, when you you seeing you, he is if don’t accountant think can do it without someone back, better, him you gun, then surround front and and if one make [sic] has so much (the in the car get plate registration license removed and no each showing). him Do not use him_shoot a__as name in front of him. Drive possible, get make him others him_in and, thing, (or car Doug Rey, first kick the nuts. Then out have with) behind, you’re working you one hold from guts ever beat him in the several times him taking “Then tell this: Mr. theres of us in six this town care of business. You dis- Tony why. couple say, figure and I want to respected know Hit him a more times then I (Hit got why you’re__want why a reason to know if he doesn’t you’ve again) him doesn’t_ answer, him_go niggers you doing ask to those were business with. If he answer, ________mortgage go you get And an thru? when be_ _in briefcase_ hours, 15,000 him he has 72 then he better a black tell goes. your group gentle. Tony gets way he The next won’t be as If he’ll break where his knees, collect, (sic) your you and our boss will weather from estate. need to listen “We did he: go cops? “1. Mr._or family? “2. Contact his the niggersd “3. Go to out_to halfway house “You__Doug point you. Doug_at Tell South). we working partners_, at the his but (might new Elks Club be at 21st First move on him until later. won’t you “See “Ricci” closing argument, prosecutor explicitly did not refer to exhibit as evidence 33Inhis rather, activity together but with as evidence defendant’s of other criminal exhibit instruction, however, provide limiting jury may the trial court did not character. Since activity. evidence of well have considered exhibit 19 as other criminal (b), beyond division unless it found that such had been activity proven Robertson, 53-55, reasonable 60- doubt 33 Cal.3d at (People supra, pp. 62); reliance, of such as instances erroneous prosecution’s Plan,” “criminal on a number Murder activity,” of incidents—the “CW Plan,” Plan,” the “Solder defendant’s letter the “Industrial Burglary extortion of the accountant—which not actual crimes. soliciting were

In phase, and reversible error at determining prejudice penalty we with agree People Justice Broussard’s refinement of the traditional test Robertson, 33 Cal.3d 21. the tradi supra, The lead abides opinion tional test that ‘“any substantial error phase occurring during penalty ’ of the trial . . . must be v. Ham (People deemed have been prejudicial. ilton 60 Cal.2d 412]; 135-137 P.2d Cal.Rptr. [(1964)]

v. Hines [164], 61 Cal.2d 168-170 390 P.2d *49 398].)” (33 54.) Cal.3d at In his Justice Broussard p. concurring opinion, suggested “substantiality” “should a careful consideration imply whether there is any reasonable the ver that an error affected possibility (Id., dict.” 63.) at p. case, this test to the

Applying facts of this we conclude that reversal of the penalty judgment First, is we the trial required. consider court’s failure to confine “criminal to evidence activities” demonstrating the commission of an 190.3, actual (b) crime. If former section subdivision been had properly interpreted and applied, Graybill’s testimony entire the penalty would phase have been excluded because the evidence with to all three respect Plan,” incidents related by Graybill—the “CW Murder the “solder plan,” the “Industrial Plan”—was insufficient to Burglary actual, establish any crime. The in completed relied on these prosecution cidents at the penalty to demonstrate casual atti phase defendant’s alleged tude toward killing his readiness resort to murder in a variety This is settings. precisely the sort of evidence that is to have a likely sig nificant on impact the jury’s evaluation of whether live defendant should die. Since there is a reasonable that the introduction of possibility improper the alleged misconduct verdict, affected the must be jury’s its admission deemed Robertson, to the prejudicial defendant. 33 Cal.3d (People supra, 54-55 at pp. Broussard, [plur. opn.], p. J.].) opn. by [cone.

The second error—the failure to doubt” in give “reasonable struction-tainted all of the other crimes that could have been con properly sidered jury 190.3, factors under aggravating section subdivision (b). Past cases have found such frequently error (see, Peo prejudicial e.g., McClellan, ple supra, 71 Cal.2d 806) and that would to be appear true in particularly this case in which the prosecution’s evi penalty phase dence rested so on other heavily crimes evidence. that the evidence of crime”

Respondent suggests the most serious “other at the letter from a Utah presented penalty written defendant phase —the the murder of prison apparently four witnesses—was soliciting prosecution so that the absence of a “reasonable could overwhelming doubt” instruction clear, however, have made a difference. It is not that such an possibly Moreover, error in this dismissed on that basis.34 case properly there was evidence in the record from which could have defense counsel that there was at least a reasonable doubt whether defendant was argued serious about actually with the constructed going through elaborately set forth in scheme the letter. In to defense counsel’s response questioning cross-examination, on who was defend- Graybill, witness prosecution friend, ant’s time long that defendant was acknowledged exag- “prone [i.e., addition, these things criminal In gerating planned jail- acts].” house letter itself indicates that the described was not to be immediately plan letter, into but instead that was to operation put Moyes, recipient could, it with him when he visited bring defendant in jail. Although course, have nonetheless found a reasonable doubt that beyond murder, was in fact of solicitation of least entitled guilty defendant was at have the issue to the properly presented jury. The is affirmed on the circum- judgment guilt phase finding special *50 stances. reversed and remanded a judgment penalty phase new trial. penalty

Broussard, J., concurred.

KAUS, J.,* Concurring.- believe, which,

I with the I is correct agree majority opinion of defendant’s extremely in all Its treatment important respects. thorough contentions, somehow those to the many particularly relating phase, penalty the fact that one reversal of the this is of the clearest cases for obscures (1) that we have come a deal across: the trial court admitted good penalty “criminal evidence which did not under activity” of qualify prejudicial Code; Penal with to which did qualify, those incidents respect to a give failed reasonable doubt instruction. it de respect “guilt phase” proceedings, Supreme to Court has 34With the United States necessity beyond that “failure to a reasonable jury proof guilt clared instruct a on the of of Thus, can never be harmless actually error. guilt was doubt a defendant whose [Citations.] by overwhelming process jury instructed proved evidence would be denied due if the added.) (Italics guilty he could be found a preponderance that on mere of the evidence.” (.Jackson Virginia 307, 320, 560, 574, S.Ct. 443 U.S. fn. L.Ed.2d 2781].) Supreme sitting *Retired Associate Justice of the assignment by Court under the Chair person of the Judicial Council. hand, As as I feel to hope have I long express pen compelled retrial, if, from at a to the letters the Utah elects offer prosecution again do it will a the “rules jail, job regulations” better proving defendant that mail was mon- supposedly apprised outgoing subject being itored. —

BIRD, J., C. I concur Concurring Although judg- Dissenting. ment, I write of the analysis because the lead errors separately opinion’s (see evidence regarding activity” admission “other criminal former Code, 190.3, Pen. (b)1) subd. ensued raises prejudice signif- § icant questions.

I. trial, In an a attempt ensure accused fair phase my col- penalty leagues it for the trial suggest many cases advisable judge make a preliminary determination out of the jury as to presence whether there is substantial each element prove “other criminal activity” that the seeks to at the prosecutor penalty present phase. ante, (Lead 25.) opn., 72-73 fn. this is an admirable pp. effort Although which will no doubt result in the exclusion of irrelevant and highly preju- dicial evidence at the I that due remain convinced penalty phase, process a requires determination a the truth of other on separate jury violent criminal activity which the rely aggravation. intends to prosecutor

To permit jury which has sustained a first murder just degree charge with special circumstances to consider truth heretofore uncharged criminal activity is “Such unlikely foster impartial factfinding.

would have very strong would be almost tendency—indeed, compelled— to find guilty [the less serious relatively activity] accused] [criminal *51 once it heard all the to be guilt evidence him a phase showing [has] person who commits first This degree evidence should not presented [be] murder[]. to the at all jury until been found true a reasonable beyond doubt [it has] an by 803, fact impartial (1985) finder.” v. Frierson 39 Cal.3d (People Bird, 821-822 (cone. J.).) 705 P.2d of C. Cal.Rptr. opn. [218 396]

II. The lead test for in opinion also the Justice adopts prejudice proposed Broussard’s in 33 People Robertson Cal.3d concurring opinion ante, (Lead at 655 at P.2d page Cal.Rptr. opn., 279]. test, 83-84.) Under that substantial error”—which a “any pp. “implies] statutory references are to the Penal Code. 1All an there is reasonable any consideration whether possibility

careful the of a sentence of verdict”—mandates reversal [penalty] affected error of error” test It is useful the the substantial origins “any explore death. the for assessing note that formulation not the test only Broussard and effect error. the of penalty phase prejudicial two decades in v. Hines 61 Cal.2d 164

Over ago, court, Tobriner, the ex- 398], Justice P.2d writing California that in of “miscarriage jus- the Constitution’s applying plained case, standard a “we the deep-found- tice” death must penalty recognize and its ed difference between the task of the in the trial ‘usual jury penalty of certain whether or not certain and con- finding function events occurred resulted than the from them.’ In all other situations sequences [Citation.] trial the the and reaches jury deliberates under court’s instructions penalty within its verdict the the the the phase area delineated In judge. penalty instructions; no court such ‘the with- gives must decide jury question [this] benefit of out guideposts, standards criteria.’ applicable [Citation.] decides in its whether exact the jury absolute and discretion unguided In all death other than the trial the evidence must penalty. situations penalty issue; narrowed down the evidence be to the the trial point penalty of a consists multitude en- of matters to the defendant pertaining [citation] the jury make ‘a of that abling person careful complete analysis emotional, of composite human factors.’ psychological genetic [Cita- (Id., at 168-169.) pp. tion.]” Tobriner “The

Justice continued: isolation of the determination of trial, in the which without standards for penalty penalty proceeds death trial, which has reached expansion subject-matter of the plus jury, wide to the an margins, undefined task very gives jury performed upon of a mass of material. As a result rest conceivably showing jury may one upon death introduced data or factor penalty any piece any welter matter. The in the precise point penalty prompts this one juror is not known to us and not even known to any may mind dark times Yet this must be ignorance compounded deepened him. factor influence any particular further recognition even manner, if We cannot determine precisely opposite jurors two [f] before would of an neutralize the error impact other crime, verdict. Such factors as nature of grotesque uphold or the behavior the defendant guilt, may conceivably certainty arrogant *52 the death error. who can these any say assured Yet penalty despite have demonstrated to a de factors not have that a might particular juror very fendant, sane, acted under the demands some inner com although legally should We are unable not die? to ascertain whether an error pulsion result; not would cause a which is insubstantial different we lack the purely

87 Thus, criteria for in the objective such substantial error judgment, any [t] result; that in trial have affected the it is penalty may ‘reasonably probable’ the absence of such error ‘a result more favorable to the appealing party (Id., would have been 169.)2 reached.’” In numerous decisions since p. Hines, this court has to the rule error” at the “any adhered substantial aof a remand for new penalty phase case reversal and capital requires (See, 808, trial. 814-815 penalty (1967) v. Varnum 66 Cal.2d e.g., People 108, “substantial”]; 427 P.2d found v. Cal.Rptr. People [59 [error 772] 186, 406, (1969) 71 Vaughn Cal.2d 421-422 455 P.2d Cal.Rptr. 122] [78 did not error”].) constitute “substantial [error true, course,

It is that unlike statute effect at the the death penalty Hines, time of the 1977 and to the laws—responding 1978 death penalty constitutional mandate set forth in a United States intervening number of Court decisions 428 153 Supreme (1976) v. U.S. (e.g., Gregg Georgia [49 859, L.Ed.2d 96 S.Ct. to be consid- 2909])—set forth numerous “factors” 190.3.) ered (See While these jury its deliberations. penalty § factors do some to the provide sentencing jury, direction “guideposts” it is important not in the discretion exaggerate scope jury difference under the current section Although statutes and that under the old law. 190.3 places may limits consider jury factors that “aggravating” 762, arriving at its decision (see (1985) v. 38 Cal.3d 772-776 People Boyd 1, 782]), 700 P.2d the United States Court has Cal.Rptr. Supreme [215 made it clear that the any must be free consider jury mitigating relating to the defendant’s character or the defendant background prof- 586, in his fers behalf. (1978) Lockett Ohio 438 U.S. 604 (E.g., [57 973, 989-990, L.Ed.2d 2954]; (1982) 98 S.Ct. v. Oklahoma 455 Eddings 1, U.S. 104 L.Ed.2d 869].) S.Ct. [71

Furthermore, the current statute does not to tell the how purport importance much on each of place the various factors or listed how to one factor weigh against another. In the final each analysis, juror is still Hines, 2Even before a number of adopted decisions had a similar approach to the penalty (See, prejudicial question. error phase e.g., People v. Hamilton 60 Cal.2d Cal.Rptr. 383 P.2d necessarily [32 12] follows that substantial error [“[I]t occurring trial, during penalty phase that results in the penalty, death since it reasonably swayed juror, have must be prejudicial. deemed have been This rule law has at, decided, hinted if not been in prior People cases. In v. Linden 52 Cal.2d 397], P.2d it was said that error and penalty misconduct at the ‘implicitly trial invites every Only reversal case. extraordinary under circumstances can the pro constitutional verdict.”’]; . . vision . save the Terry (1964) 61 Cal.2d 605, 390 attempt P.2d 381] [“To assess effect of error legal in this vacuum is to superimpose upon one untestable surmise pile another. We must conjecture upon con jecture posit the decision of life or upon pyramid death guesses. Hence we must trial, conclude that in view of the nature of this kind of necessarily above errors caused prejudice.”].) *53 88 make a from own values to drawn the judgment juror’s personal

required whether, and the in of the circumstances of the offense defend light as to (See the to live or die. ant’s character defendant deserves background, 637, (1985) v. Brown 40 Cal.3d 538-545 709 Cal.Rptr. People [220 reasons, 440].) P.2d For it remains true that precise point these “[t]he the in the mind of one is known any juror which prompts penalty [death] (Hines, not even be known to him.” 61 Cal.2d at supra, to us 169.) p. Hines has Broussard’s formulation—which yet

Justice recasting contexts, a so the long some majority view—may appropriate gain concerns are the Hines decision mind in kept fundamental prompted no way the standard. Since there is the set values knowing applying determination, court each to the this must be juror penalty which brings error trial as cautious in an at the “harm- extremely dismissing penalty less.”3 the is also Broussard formulation not the important recognize

It a test for whether a error is “substantial” phase only evaluating penalty Oklahoma, her in Eddings supra, In 455 U.S. concurring opinion one. 14], 119 L.Ed.2d at Justice observed that O’Connor the p. at page [71 the Amendment’s on cruel Eighth prohibition federal precedents interpreting (Woodson unusual v. North 428 punishment Carolina U.S. 280 Ohio, 2978]; 586) L.Ed.2d S.Ct. Lockett v. supra, U.S. to remove us basis for any legitimate finding “require ambiguity concerning actually factors considered of fact in by death imposing [trier penalty].” of this this

A court formulation majority adopted Easley There, 34 Cal.3d P.2d 813]. sentence reversed as a result of the trial court’s penalty phase death told the not be jury that it must influenced inaccurately instruction 878; {Id., or for the accused. at CALJIC No. pity 1.00.) see sympathy p. by not to be ... directing jury swayed by pity, court “By sympathy told not to the bulk of the jury give any weight in effect Thus, well defendant. the instruction have elim- may very proffered {Id., chance had to 880.) death Easley escape p. inated penalty.” conclusions were buttressed the trial acknowledgement Those Roger error: Traynor monograph “Perhaps observed in his on harmless 3Chief Justice capital penalty that relate to the case. A dangerous risk inheres in errors issue of most death; no standards arriving guide at a verdict of are absolute discretion in there jury has appellate possibly what factors influenced a an court cannot determine consequence In it. error, proof Any only unless it to the penalty. death related some fact impose the established, tipped against might have the scales defendant. indisputably otherwise ” capital usually compels (Traynor, case reversal. Hence, penalty phase error an 72-73.) (1970) pp. Error of Harmless Riddle *54 court misled the with to “significantly jury the fundamental nature respect of its task” sentencing consideration of at precluding the sympathy pen- alty phase, by “effectively the to much of requiring] jury disregard evidence which (Ibid.) had at Easley presented the penalty phase.”

These principles—along with Justice O’Connor’s formulation— Eddings were a few months later in applied People Lanphear Cal.3d 680 P.2d As in the trial court had Easley, 1081]. in the jurors instructed of No. CALJIC 1.00 and had failed to language that instruct could consider they “any aspect defendant’s character or background whether death was the determining appropriate penalty.” (Lanphear, supra, 166.) 36 Cal.3d at In that retrial of the p. holding penalty mandated,” was “constitutionally phase court observed “we may a judgment not affirm death in the face of which ambiguity may have misled the as to its jury (Id., 169.) function.” at proper p. Brown,

These identical errors were considered recently su- 40 Cal.3d 512. pra, similar Using reasoning to used in a Lanphear, of this court held majority that “the tension ambiguous between these in- structions and defendant’s right consideration all the sympathetic char- background acter and evidence he reversal presented requires penalty (Id., omitted.) fn. judgment. p. [Citations.]” course, not

Of error be every “substantial” penalty phase may enough create “ambiguity have misled the as to its may jury func- proper However, tion.” an error still even if be “substantial” it not possible with to conclude relative have reached a would certainty jury different in the absence result error. Given the function unique penalty determination, serves and factors it assesses in its such a making me- be chanistic should avoided. approach assessing prejudice Justice in the Broussard’s Robertson standard lead opinion applied appears flexible enough accommodate such concerns with respect admission However, of and instructions on other criminal evidence. activity “any test of also Easley and the federal be ambiguity” might precedents appro- is that we not for certain kinds of errors. What is lose important priate sight workable Lanphear and Brown in standard that Easley, fashioning will all cases. applicable (Robert), J.,* FEINERMAN I Concurring Dissenting. on affirming judgment guilt phase concur circum special I from the dissent reversal of the finding. judgment stance respectfully Justice, District, Five, Appeal, *Presiding assigned Court of Second Division by the Chairperson of the Judicial Council. In is no that there phase. my opinion, possibility reasonable penalty *55 trial affected the committed the defendant’s penalty phase errors during determination. jury’s penalty and murder for monetary

The defendant committed a deliberate monstrous arrest, he and a victim. After defendant’s attempted execute second gain murder victim and other wit- prosecution second three planned friend, Colman, defendant’s nesses—Richard Sharon Graybill, longtime and No Barbara defendant’s mother. Hollingshead, mitigating girlfriend, were The on behalf of evidence in the defendant. presented circumstances in the regarding to the defendant’s presented jury penalty aggravation phase that the and defendant background overwhelmingly demonstrated character Furthermore, admitted of evil. the defendant that he was personification a man in with had shot Mex- involved others in cocaine and trafficking was ico.1 state, has, letters as the that containing

To defendant’s majority jailhouse out,” “nail,” to “knock and “blast” four witnesses prosecution directions conduct it is ambiguous specious “somewhat as to the solicits” reasoning. is cannot Considering be determined in a vacuum. Ambiguity properly out,” words, “nail,” “knock “blast” as isolated each separately, terms in the may appear them circumstan- ambiguous. Considering together term used, is clear. com- they Logic, were their meaning chillingly ces and the life the conclusion when sense realities of everyday compel mon out,” “A,” dealer, a murderer solicits “B” “knock “nail” drug conviction, “C,” whose “A” will result “A’s” wants testimony “blast” Any dead. other conclusion is unreasonable. “C” that there was a doubt whether majority’s argument The reasonable his was about with scheme serious” “actually going through defendant was a defendant unconvincing. kill witnesses deter- prosecution 20, defendant survivalist. When he Exhibit vengeful mined wrote in a in Utah to California jail and was extradition stand lodged awaiting friend, of Rose’s murder of Ron Rose and the murder attempted trial Bartulis. with Graybill and Colman had decided to law cooperate Bruce mother, home defendant’s was at when enforcement Hollingshead, arrived the crimes. defendant with Colman after commission of Mani- alibi, cross-examination, testified on part Defendant both direct and of his he was trafficking, with others in involved cocaine and testified on cross-examination he had man in Mexico. I both of be properly believe these admissions can shot considered as activity Clearly, criminal under former Penal Code section no reasonable other 190.3. doubt required penalty phase regard at the of other should to evidence criminal instruction crimes where the evidence of those other was introduced and relied on activity by the himself. it eliminate festly, was in the wit- defendant’s best interests all these nesses before they had chance to him his trial. testify against

Although jury may have considered certain incidents erroneously other (i:e., criminal those the “CW Murder purported activity, events Plan,” Plan,” the “Solder Plan,”) were of relative “Industrial Burglary minor significance to the other incidents which could compared consider as other properly (i.e., criminal defendant’s letters solic- activity witnesses, mother, the murder of own iting four his prosecution including *56 defendant’s admission that he had a shot man Mexico and defendant’s he

admission that had been involved with others in A cocaine trafficking). search for the golden fleece inevitably trial” is doomed to “perfect failure. one,’ defendant is a a entitled to fair trial but not for perfect “‘[A] no 223, there are (Brown (1973) trials.” States perfect United U.S. 208, 215, L.Ed.2d 1565].) 93 S.Ct. It is also important recognize justice “extreme is often injustice.”2 I recognize highest standard care must be utilized reviewing the record in the an penalty a case. It is awesome phase capital respon- to be sibility of a part process can result in of a taking human life. But we also have a concomitant society whole. responsibility As Justice N. Benjamin Snyder (1934) Cardozo stated in Mass. 291 U.S. 97 page 575], L.Ed. 54 S.Ct. A.L.R. “But accused, justice, due to the due to also. The though the accuser concept of fairness must not be strained till it is narrowed to a filament. We are to the balance keep true.”

Given the of a the fact that not record that one backdrop highlights scin- tilla of evidence in was introduced on behalf mitigation defendant in I penalty phase, do not there is a reasonable possibility believe that the minor incidents other criminal activity admitted as improperly omis- sion of reasonable doubt incidents properly instruction as those consid- ered as other criminal a difference could have made jury’s activity verdict the penalty phase.

Mosk, J., concurred in this only. disposition

Respondent’s petition February denied 1986. rehearing J., Mosk, Lucas, J., Panelli, J., that the were of opinion petition be granted. should 2Racine, IV, Voltaire, III, La 3; Thebaide Oedipe act act scene see also 3.

scene