*1 May S004704.Crim. No. 25109. 1989.] [No. PEOPLE,
THE Plaintiff and Respondent, SHELDON, THEODORE Defendant and Appellant. JEFFREY *7 Counsel Defenders, Bell, Zall, Jr., Public under State Harvey
Frank O. and Court, Nancy Gaynor, by Therene Powell and Supreme appointment Defenders, and Appellant. Public for Defendant Deputy State General, White, Steve Chief Assistant Attorney John K. Van de Kamp, Jr., General, Millar, Janelle B. M. Bloom and Jay Frederick R. Attorney General, Davis, for Plaintiff and Attorneys Respondent. Deputy Opinion judgment from a
LUCAS, Defendant Jeffrey T. Sheldon appeals C. J. his of first murder following degree the death conviction imposing Code, 187; statutory are to this code unless (Pen. all further references § felony-murder three indicated), accompanied special-circum- otherwise 190.2, (ii) (§ (a)(17)(i) (robbery-murder), (kidnap- subd. findings stance Additionally, with to the (vii) respect and murder), (burglary-murder)). victim, robbery vehicle theft (§211), was convicted murder defendant Code, (§ and extortion subd. for ransom (Veh. 10851), kidnapping § was also convicted of (a)), 459). residential burglary (§ and victims, ransom and including kidnapping three other against crimes firearm, extortion, count accom- robbery, with a each burglary and assault (§ 12022.5). panied by finding firearm-use that the murder was deliberate findings returned special victim, and intentionally killed the murder that defendant
premeditated, the murder with the intent intentionally specific that he aided abetted death, court trial denied to kill. The returned verdict we conclude modify the As will appear, defendant’s motion to sentence. that, error charge, prejudicial no exception weapon-assault with committed, vacated and the of death should be judgment but that *8 on defendant’s further proceedings to the trial court for case remanded 190.4, be- (§ (e)) subd. modification of sentence automatic for application the denial of that supporting failure to state the reasons cause of the court’s application. Facts
I. Guilt Phase three-day a period September offenses occurred within present and (Armstrong the employees On defendant robbed September 1983. Elsinore, in Lake the Pizza Bowl Restaurant Davis) (Malone) and owner your to “blow brains shotgun, threatening these men with a and confronting Malone, and drove off with but later released out.” Defendant kidnapped him unharmed. wife, Denise, if she day,
The next defendant asked his September Norris Neblett. The any wealthy 60-year-old knew and she named persons, Ac- drove to and confronted him at couple gunpoint. Neblett’s residence reduced, sentence in re- cording (who granted eight-year Denise was turn money for her defendant her a wad of he had collect- testimony), gave Neblett, motel, ed from drove with the victim to a where thereupon off the three spent night. day, next defendant Neblett went September to Neblett’s
bank, $10,000 where Neblett cashed a check for and gave proceeds McFadden, defendant, day, defendant. Later in the Jack a confederate of $2,500 account, cashed a check day drawn on Neblett’s and that same $8,500 an tendered check on that account. The latter check was returned uncashed after an unsuccessful attempt by to contact Neblett Soon phone. thereafter, firemen were notified aof vehicle fire Neblett’s 1980 involving BMW automobile. Investigation body. of Neblett’s residence uncovered his The cause of death strangulation; body heavily his and face were body floor; bruised. His evidently was found on the he had been smothered face, neck, with a down pillow weighted eyebrow, couch and chair. His abrasions, and chin lip showed his nose was smashed almost flat his against face, body and his had been kicked beaten. apparently
On September defendant and Denise flew to Neb- Michigan, taking lett’s camera and collection stamp along They with them. of the disposed shotgun and in a engaged spending before spree being apprehended. Special
II. Guilt Phase Circumstances Issues A. Failure to Provide with Jury Written Instructions
Defendant first contends that the trial court erred in denying his motion have written copies given jurors instructions to the *9 Instead, the guilt penalty phases. at the
use their deliberations during they have the written would not jurors although that court advised instructions, all any to or of the you any portion time wish have “should at and we will it.” have to do is so indicate do you read all again, instructions instruction, any although rereading guilt not a jury request phase The did to its instructions. penalty it ask the court repeat did statutes and at the time of trial the applicable Defendant concedes that written instruc- jury the court to with gave provide case law discretion 1137; v. Anderson (6), former subd. (See tions. §§ 633, 640 denial of [upholding 366] instructions, foreman, by jury compliance because despite request written delay (6), was unduly trial].) In section subdivision would by the jury. for provide jury upon request amended to written instructions to exercise in the absence continues for an of discretion provide section a request. such Anderson, observes, however, case, in the unlike present no denying the trial court stated reason for defend- Moreover, than 60 comprise pages motion. the instructions more ant’s jury regarding the likelihood of confusion transcript, magnifying reporter’s defendant, both abused its charges. the various to the trial court According by failing and denied defendant his constitutional rights pro- discretion vide written instructions. essence, unable jurors fully defendant’s is that are premise generally orally As “a argument, delivered instructions. he states
comprehend rely which is forced to on the court’s oral cannot be presentation remember, understand, in a the instructions rational apply expected manner consistent with law.” He cites law review articles applicable various have confirming difficulty jurors which refer to studies com- instructions, the availabili- legal urging issues based on oral prehending v. Miller ty instructions in the room. also United States of written 320, 324, fn. (9th 1976) 3.) Cir. F.2d any
It not of the studies or articles cited defendant appear does instructions, rereading into consideration the alternative of such took Indeed, penalty here. asked for a jurors rereading was available instructions, uncertainty and the record contains no further indication of Although numerous jury’s part confusion on instructions. regarding Indeed, charged, were were involved. complex legal criminal acts no issues days. completed deliberations were two jury’s guilt phase two deliberating days, after phase jury possible announced “deadlock” There is no days of deliberations. after two more but reached a verdict the deadlock. contributed to instructional confusion indication that *10 discretion, err, in or abuse its that the trial court did not We conclude written instructions. defendant’s motion for denying B. Shackling Defendant trial, the a held to determine hearing was
After commencement key A handcuff had been leg defendant with irons. necessity shackling confederate, Hearsay McFadden. in the of defendant’s possession found informant, objection, admitted without indicat- evidence from a confidential addition, key; have such a in he had might ed defendant also access to inmates, five and was a life term facing prison committed assaults on other in Nevada. The officer deemed defendant a risk.” testifying “high escape shackled, The court ordered defendant after that the restraints finding prob- ably could not be seen from the box.
Later, dire, voir one of the members indicated to the during jury panel court that had was (Evidently, she viewed defendant’s restraints. panel large so number that some members were seated section spectator courtroom, were able they shackles.) where to see Thereupon, court stated to the assembled some of its members panel apparently may custody,” have noted that defendant was “in admonished “custody” that such had panel guilt, no relevance to the issue of his counsel, not in any way should affect the verdict. Defense had who pro- kind, posed “general” objection admonishment of this made no to the by chosen the court. phrasing observes,
As defendant because potentially of its prejudicial impact resort, jury, only on the is to be a last “a shackling employed based on of manifest need for such v. Allen 42 showing (1986) restraints.” People 849, 115; 1261 Cal.Rptr. 729 P.2d Duran [232 290-291 A.L.R.3d 1]; v. Jacla Accord Cal.App.3d defendant, ing to there was no manifest need for in this case. He shackling that shackling justified solely contends cannot be on the basis of earlier violations, and that the prison disciplinary other evidence was insufficient to sustain the trial ruling. court’s We disagree.
The court’s shackling successfully decision “cannot be challenged on review on a of a except showing (Duran, manifest abuse of discretion.” Allen, 12; Cal.3d at fn. supra, p. 293, 1263.) Cal.3d at p. Here, the evidence summarized above was sufficient basis for shack an might attempt defendant substantial risk that it indicated a ling, for inaccurate, faith, Moreover, deter a good although the court made escape. by jury. would not be viewed shackles mination that defendant’s admo- subsequent the court’s challenges adequacy also “in nition, custody.” merely the fact that defendant was referred which a more appropriate description perhaps Yet the court’s euphemistic directly on defendant’s shackles emphasis tactic than additional placing many of remained unaware panelists them. It mentioning appears shackles, actually observed them jurors apparently and the few who *11 (1988) v. Rich (See People at them. only had a brief look in P.2d of defendant viewing 1084-1085 960] [brief Duran, error]; 16 Cal.3d at p. prejudicial shackles not noted, objected to the As defense counsel neither [same].) previously fn. clarifying language. nor requested admonition here.
We abuse discretion occurred conclude that no C. CALJIC No. 2.11.5 and the corroboration regarding court the standard instructions gave 3.11, 3.12, 3.13, 3.10, testimony (CALJIC Nos.
evaluation of accomplice 2.11.5, addition, which gave 3.16 In the court CALJIC No. 3.18). than (1) why not to or consider other jury persons, admonished discuss defendant, not been offenses nonetheless were may who have involved trial, they have been or will be so in this whether being prosecuted prosecuted. not be correctly that CALJIC No. 2.11.5 should observes at actually testify trial and for “persons” appear where such other
given case, entirely a for the to consider proper such it is prosecution. testify return avoided accomplices prosecution whether cooperating defendant. Williams ing against (See People case, wife, Denise, de testified against
In the defendant’s present out, the (As People point in return for a reduced sentence. fendant McFadden, have to who refused accomplice instruction could also applied may trial.) that CALJIC No. 2.11.5 testify at defendant’s Defendant fears testimo highly inculpatory have evaluation of Denise’s hampered jury’s that, ny. felony-murder He in view of the “clear cut” nature of observes rule, the guilt that the instructional error affected he does not contend maintains, however, sufficiently that the error was serious verdicts. He judgment. circumstances findings reversal of the require special defendant, well have found jury might a instructed According properly (Denise role in the murder than defendant. played greater Denise direction.) Although testified that she did was at defendant’s everything have affected the defendant fails to indicate how the error could possibly “clear cut” once the circumstances likewise seem special findings (which re- felony-murder counts are he makes the sustained), following argument sum, likely the effect on “In the error made it more garding penalty: and that he leading would find took role therefore appellant actual of the murder or at least an intentional aider of it. perpetrator likely The error also made it that the jury’s more sense of proportionality fairness would not be offended death in the sentencing appellant to face eight-year of Denise’s sentence.” recently
As we in a involving stated case a similar to the challenge 2.11.5, *12 giving of CALJIC No. “In determining whether an instruction inter trial, jury’s feres with the consideration of evidence at presented we must determine a juror ‘what reasonable could have the charge understood meaning.’ While the initial focus is on the specific instruction [Citation.] challenged [citation], we must also review the a instructions as whole to see if the entire delivered a charge correct of law. interpretation [Citation.]” 257, v. Garrison 47 Cal.3d 765 (People P.2d Williams, 419]; see People supra, 1312-1313.) Garrison, We held in any 47 Cal.3d that error in supra, giving instructions, CALJIC No. 2.11.5 by was cured other and that the same result would have obtained in the absence of this error.
Watson P.2d We reach a similar conclusion here. case,
In the present testimony, from Denise’s there apart was substantial evidence, circumstantial, both direct and There guilt. defendant’s was very little evidence theory that supporting speculative may Denise have major Moreover, taken a role in the murder and other offenses. defendant Denise, had full opportunity to cross-examine and to and explore argue to any the jury bias or collateral possible motive on her part. noted,
Finally, as previously given was the full set of instructions for evaluating accomplice testimony, that including admonition accom testimony plice should be viewed with distrust. error Accordingly, although Garrison, 2.11.5, in giving occurred CALJIC No. in nonetheless as in any defendant unlikely prejudiced it instruction Cal. 3d instruction, free to remained way. Despite “nonprosecution” testimony. discredit Denise’s Penalty
III. Phase Facts Evidence Aggravating A. in which de- introduced evidence of a 1983 Nevada offense confronted, assaulted, elderly and threatened kill an had robbed
fendant Mahan, at their vacation home Incline Raymond Kathryn and couple, rifle was discharged also disclosed that defendant’s Village. evidence officer, and defendant later arresting bragged with during struggle me.” Further of this Nevada that “I tried to take one with discussion set IV.A. this part opinion. offense is forth Evidence Mitigating B. mother, by was given and character evidence defendant’s
Background Dr. by and and a clinical Rath. Defendant grandmother, psychologist, aunt childhood, was and taunted his regularly had a troubled and bullied clumsiness, classmates, hyperactivity who made fun of his stepfather student, was hard- dyslexia. poor described as but family. toward his working loving murder, in bed with
Two months before the defendant found Denise *13 man, Dr. Rath leading breakup marriage. another to a of their temporary was of continual emo- believed his with Denise a source relationship disorders, turmoil As his defendant tional for defendant. result of childhood moodiness, sadness, anxiety, exhibited occasional excess aggression, chronic had and a low tolerance of Dr. Rath confirmed that defendant frustration. brain, his hemisphere suffered some the verbal areas of the left damage he a child. indicating dyslexic and probably hyperactive Penalty
IV. Phase Issues A. Evidence Other-crimes indicated, at the Charge—As previously
1. Prior Murder Attempted robbery introduced evidence of defendant’s phase testimony This that his weapon of the Mahans. evidence included officer, firing with and that the discharged arresting during struggle intentional, In his may merely closing not accidental. have been gun defendant’s conduct as arguments, characterizing without prosecutor, murder, statement to his grandmoth- nonetheless his attempted emphasized addition, court, trial in instruct- er that “I tried to take one with me.” evidence, on the and on the that such ing People’s requirement other-crimes doubt, beyond crimes be a reasonable listed proved attempted murder one of these crimes. possible formally out that he was a Nevada points acquitted
state court of a charge of murder based on the attempted shooting episode, that, evidence, and he argues or accordingly, argument regard instructions ing that portion incident should have been excluded under the third paragraph (“However, section 190.3. in no event shall evidence of prior activity criminal be an admitted for offense for which the defendant was prosecuted acquitted.”) Defendant contends that the only error not 190.3, violated section but also constituted a violation federal due process close, and double jeopardy guaranties. Because the issue is we review it some detail.
a. The evidence—The introduced evidence that in showing murder, confederate, few weeks after the Neblett defendant and a both armed, entered the Nevada vacation elderly home of an the Ma- couple, hans, forced Mrs. Mahan to them from the accompany garage through house, Mahan, pointed their at Mr. guns and threatened to kill the couple they Defendant, unless produced money. some with his hand covering her mouth, nose and had dragged Mrs. Mahan into the den after she blacked awoke, out from lack of air. When she she heard defendant threaten her husband to “tell the truth I’ll you. shoot You move and I’ll your shoot foot off.” When Mr. unconscious, Mahan attempted to approach his moan- wife, ing defendant again threatened to kill him. $500,000 Mahans,
Defendant demanded from the but they was told had $200 no such funds. The men eventually took from the Mahans and looked through Mrs. Mahan’s purse. Although record fails to indicate whether defendant was Mahans, ever convicted of any against offense both *14 parties agree that the evidence foregoing was admissible as aggravating court, phase (At evidence. oral argument before this the People represented that defendant indeed had been convicted of several offenses Mahans, involving the and was given by life sentence a Nevada court.) addition, the People were permitted to introduce evidence that a Chris Smith, a sheriff’s deputy, responded to the Mahans’ alarm and confronted defendant, who shoved a rifle into Smith’s stomach. As Smith swatted the gun away, it discharged rifle, once. Defendant the fled and was dropped and, jail from the grandmother He called his
eventually jailed. caught “I me.” her tried to take one with told among things, other the did not fire accidental- gun that in his opinion Smith testified Deputy cross-examination, had gun discharged admitted that the ly. Smith Om it, he that was immediately agreed possible he it after touched almost it, “that he insisted was although when he struck accidentally the fired gun defendant had been Smith confirmed that although not the case.” also him, acquitted to murder defendant was attempting Nevada with charged jury of that offense. re- arguments—In argument, his closing prosecutor b. incident, of discharge mention of the ferred to the Mahan but avoided Although prosecutor Smith. struggle Deputy with weapon during he of statement to his made jurors grandmother, reminded the defendant’s murder therefrom. attempted charge arising no reference to firing but stressed the weapon Defense counsel mentioned doubt, any activity criminal necessity finding, beyond of reasonable of certified documents any arose therefrom. Counsel noted absence Nevada, had been convicted of crime in indicating any that defendant you have” that a Nevada only that “the sure evidence observed .... It shooting at that officer guilty police found defendant “not [^[] to obviously finding.” an accidental It had be their shooting. was court, on the “other crimes” instructing c. instructions—The trial evidence, jurors told the that evidence has been introduced for purpose “robbery, burglary, kidnaping, had showing that defendant committed battery,” and cautioned that before murder and assault and them attempted circumstance, they could such acts as an they any aggravating consider in fact beyond be a reasonable doubt that defendant did must satisfied them. commit to concede that the court erred
d. Discussion—The appear They that evidence or instructing agree argu- on murder. also attempted been solely charge murder would have inad- relating attempted ment missible, equally they but observe that the evidence admitted here officer, criminal on the whether or relevant establish defendant’s assault technically According murder. to the attempted People, not it amounted 190.3 should not bar evidence that the defendant committed lesser section Thus, than the crime which he was acquitted. crimes other particular may have based on attempted charges whereas the murder been acquittal *15 kill, here was intent to the evidence admitted proof specific lack of
951 shoot, entirely consistent with an intent to criminal conduct admis- properly 190.3, sible under section first paragraph.
We The 190.3 disagree with the bar of section as to People. acquittals readily be could circumvented if could admit evidence People simply additional, which involved criminal surrounding acquitted offense lesser misconduct. We have due acknowledged process that double jeopardy would bar retrial of “final or principles guilt (includ verdicts innocence lesser . .” v. ing greater offenses) included and inclusive . . Melton (People 756, 867, 713, 44 Cal.3d fn. (1988) 17 750 P.2d As Cal.Rptr. [244 observes, defendant under Nevada law acquittal his murder attempted offenses, would bar all necessarily conviction or retrial of included lesser including assaultive offenses cited We People. conclude that the court erred under section 190.3 an instructing on murder attempted charge of which formally defendant had been We also acquitted. conclude that evidence supporting murder attempted charge was inadmissible under that section. note that trial People counsel failed to to object either the evidence evidence, argument
or regarding foregoing accordingly, issue (See was waived 730, v. appeal. Rodriguez 42 People 788 667, Cal.Rptr. 113]; 1, v. People Green (1980) 27 Cal.3d 27 [230 1, P.2d Cal.Rptr. 468].) Although [164 defendant characterizes his trial counsel’s omission as we incompetence, have seldom found a mere failure to object evidence argument reflecting counsel’s incompetence. 264, Jackson 28 Cal.3d 291-292 Cal.Rptr. [168
P.2d 149].)
Moreover, here, as we explain, under the circumstances it does not ap- pear counsel’s omission deprived defendant of a meritorious defense (see People v. Pope (1979) P.2d 859, 2 1]) A.L.R.4th or affected the outcome of the penalty (see trial Fosselman (1983) 33 Cal.3d P.2d 1144]). murder, error in instructing on attempted and in admitting the evidence, challenged First, was not prejudicial error in this case. all of the remaining evidence concerning armed assault and of the robbery Ma- was hans properly circumstances, admitted as potential aggravating includ- threats, ing rifle, defendant’s while kill brandishing them both. That evidence the prosecutor emphasized closing argument. Only that portion the evidence pertaining defendant’s struggle, the discharge of his weapon, and defendant’s subsequent remark to his grandmother, were indicates, inadmissible. As the record the prosecutor’s argument was largely confined to the robbery assault and Mahans; he made no mention of *16 arising murder attempted charge or the weapon,
the of defendant’s firing therefrom.
Second, had to that defendant permitted counsel was establish defense charge. the As formally previously of murder acquitted attempted been indicated, in the jury that “a argument emphasized counsel during closing shooting police Mr. not of at that guilty State of Nevada found Sheldon officer, Smith, shooting.” It accidental guilty. not ... was an Sergeant as jury the could consider the offense Defense counsel stressed that before factor, beyond be a reason- jury the must convinced aggravating penalty an formally that the offense occurred. The was instructed able doubt that effect. the the strong
Given the Nevada of reasonable-doubt acquittal, wording instructions, shooting, ambiguous surrounding the rather circumstances the accidentally, and gun discharged the substantial chance that the including closing the lack on the incident the emphasis placed prosecutor of realistically (1) that reasonably possible jurors it is not the argument, doubt, beyond and found murder was established a reasonable attempted actually affected aggravating deemed that offense an circumstance which their verdict. words, we after told of juror, being other conclude that no reasonable doubt, beyond
the find a reasonable on acquittal, Nevada would nonetheless record, Smith, Deputy this weak that defendant murder attempted that he die of attempt. should because 2. kidnap Prior trial court included Kidnapping simple Offense—The an jury might one of the Nevada offenses which consider as
ping beyond if aggravating proved circumstance reasonable doubt. kidnapping Defendant now contends that evidence insufficient as a matter law and should not have been accordingly harmless. regarding agree, instructed that offense. We but find error Mrs. The evidence at issue indicated defendant confronted forcibly (adjoining Mahan in her her into the house garage, pulled hall, kitchen, finally her room and garage), dragged through dining involved, it Although into den. the record does not reveal the distances entirely does the Ma appear that took almost within asportation place that, reason, regardless han home. Defendant contends for this involved, actual asportation kidnapping. distance did not amount v. Brown (1974) Cal.3d 788-789 house, P.2d and outdoors for distance through asportation 226] [forcible feet, Daniels kidnapping]; People not *17 897, 225, 43 one room P.2d A.L.R.3d from Cal.Rptr. 459 677] [movement v. robbery]; John People to another insufficient to constitute kidnapping 798, (1983) Cal.Rptr. asporta- 149 804-810 Cal.App.3d 340] [465-foot [197 insufficient].) tion note there no line” test for kidnapping, People “bright may
and that the distance is not long offense occur as as the involved 588, v. “slight” or “trivial.” Stanworth 11 Cal.3d 601 (1974) (People [114 250, Cal.Rptr. 1058]; 522 P.2d see v. Stender 47 People (1975) Cal.App.3d 413, 423 to from house outdoor Cal.Rptr. asportation [121 [200-foot 334] Moreover, area underneath held pier sufficiently substantial].) People observe, if may even the offense here not have it kidnapping, involved certainly activity did involve some form of criminal (e.g., imprison false ment, assault) admissible as an properly aggravating (See circumstance. 190.3, factor (b).) §
Finally, according defendant made no People, objection to the issue, evidence at and failed to request additional instructions from apart general “other crimes” instruction which included as one kidnapping defendant’s Had possible jury offenses. defendant wished the focus on the distance, issue of he could have asked for additional instructions which defined the elements of v. (See 41 kidnapping. People Phillips (1985) Cal.3d 29, Cal.Rptr. P.2d 423].) [222
We agree with defendant that the at asportation issue was too minor to constitute kidnapping, that the court erred in including that offense the other-crimes instruction. But agree we with the Peo that the error ple undoubtedly was harmless. The evidence question conduct, admissible to show defendant’s other criminal and no reasonable a juror, using lay commonsense or view what a person’s constituted kidnapping, would have deemed the asportation in-house kidnapping doubt, beyond a reasonable or have considered that limited asportation material aggravating circumstance in determining defendant’s penalty.
jury’s focus would have been directed to defendant’s conduct in dragging house, Mahan Mrs. throughout threatening kill her and her they if husband did not comply with his demands. Mandatory
B. Sentencing Statute observes that the was instructed in the unadorned statu tory you that “If language conclude that the aggravating circumstances circumstances, outweigh the mitigating you shall impose sentence death.” He suggests these instructions were in inadequate to form the that it should find the for defendant “appropriate” penalty miti- aggravating weight applicable number regardless Cal.3d 1035-1041 v. Edelbacher factors. gating People Allen, 1]; 512, 541 1276-1277; Brown P.2d *18 that, inquiry regarding in to a juror’s also observes response mitiga- trial indicated that the the term the court meaning “mitigating,” of defendant, a life about and that imprisonment tion means “good things” things” outweighed if the “good without sentence should be imposed parole may have preju- that simplistic response the bad. Defendant this suggests merely positive aspects or jury “good” diced him if the confined itself to him, on a an based about rather than to find attempting appropriate a all militate in favor of lesser penalty, consideration of factors which might family and histo- factors as troubled childhood negative such his including and marital ry, his use his drug problems. the jury concerning the the was not misled
Our review of record indicates First, the a modified jury given scope sentencing responsibilities. its “any other factor instruction which advised it to consider (k) section 190.3 a the defendant offers as of the defendant’s character or record that aspect death, Thus, instruc- for than the including sympathy.” basis a sentence less consider all jury weigh mitigating tions made it clear that the was to Easley (1983) evidence in the case (see People 813]). addition, ex- instruction which gave the court further modified exceeds equals that if the of the circumstances or plained weight mitigating ones, life return a verdict of weight aggravating jury the the must mitigating and that in whether or not circum- determining without parole, ones, by are not the number of outweigh aggravating “you stances bound in or mitigation aggra- circumstances on each side. One circumstance either outweigh contrary vation all circumstances.” might certain comments that mere count prosecutor indicating made would be determinative of applicable sentencing penalty, various factors Thus, he mere count was insufficient. the prosecutor but later explained in Are factors at one all the factors. point urged jury up “add the factors favor of the defendant? Are the the defendant? If against factors defendant, your for then against outweigh the defendant the factors in duty is But later his impose penalty.” argument, prosecu- death evidence, factors, them to the sentencing applied tor reviewed the various forth in the court’s instructions: an “caveat” set explained important outweigh not determining aggravation whether or circumstances “[I]n . . . are bound the number of circumstances mitigation you those not either mitigation might on each side. One circumstance in aggravation all contrary circumstances.” outweigh law,” jury stated if the would prosecutor would “follow the it
reach the inevitable conclusion that defendant deserves” the death “justly way no it penalty, admonished the law matter which “apply nothing mandatory cuts.” But in the stressed the prosecutor’s argument sentencing language statute.
Defense only counsel to the that it was faced with one explained issue, namely, whether defendant live or should die. Counsel observed that death is reserved “the most are despicable “virtually criminals” who worth,” any without redeeming and he emphasized aspects defendant’s *19 character and background that mitigated his offense. Counsel listed several sentencing factors that he mitigating, deemed of including any the absence conviction, prior defendant’s emotional stress arising from his troubled life, background and family his intoxication at or around the of time the offense, and his age (21) at that time. Counsel reiterated that in weighing factors, the various is not a matter It of numbers. is saying not ‘There “[i]t here,’ are five here and three it is how each is. strong way, one Either one [][] outweigh words, can all . of the . . rest. other your it is what is in []J] heart.”
As we stated in People Hendricks Cal.3d 655 [244 836], 749 P.2d see no ain impropriety prosecutor “[w]e urging the jurors that ‘follow the law’ and base their penalty on a decision factors, of the weighing applicable so it long as is understood that inherent in the weighing process the determination of .... ‘appropriateness’ itself noted, As previously the in jury the present fully case understood that it assign could whatever weight it deemed to the appropriate aggra- various factors, vating and mitigating and that its decision penalty should be based all on the evidence in the case.” Hendricks, that,
As in we conclude by reason of the court’s modifications instructions, of the standard themselves, sentencing jury and the arguments jury in the fully instant case its understood sentencing responsibilities. jury knew that it should consider all the evidence in mitigating case, and knew that it could assign whatever it weight chose to the various applicable sentencing It factors. is inconceivable that a jury armed with such understanding would fail appreciate responsibility its to find an “appropriate” penalty for defendant. prosecutor urged the jury to return “deserves,” is, the verdict defendant that the appropriate verdict under the circumstances. We it significant find jury, that the appreciating task, rendering its days before its deliberated several
the seriousness of verdict death. was jury contends that because
In a related defendant argument, was punishment, told whether death an appropriate never to determine As to defendant. statutory applied unconstitutional as California scheme is initial premise have we defendant’s accept we cannot explained, determina- regarding appropriateness its inadequately informed tion. Counting Robbery, Burglary Special
C. and Kidnapping Multiple Circumstances and instruct the on charge it was error to contends 190.2, burglary (§ (a)(17)(i)), circumstance subd. robbery special circumstance (id., kidnapping circumstance
special (i (a)(17)(vii)), special three of the indivisible d., because all arose out same (a)(17)(ii)), conduct, victim having robbing criminal principal purpose course Harris opinion Neblett. He relies on plurality held, We have since 60-67 433]. however, charged can be and considered multiple special circumstances where, here, a separate each one invades aggravation *20 919, (1988) societal interest. v. Bean 954-955 (People [251 Melton, 713, 467, v. 44 765 996]; 760 P.2d Cal.3d Cal.Rptr. People supra, Thus, and all three 769.) jury it was to allow the to find consider proper circumstances. special Counting Charged
D. Circumstances Double Offense of of notes, factors in jury aggra- As defendant other the is consider among vation or under 190.3 circumstances of mitigation “(a) section are [t]he crime for which the defendant was in the present proceeding convicted .”; be true . . any “(b) the existence of circumstances found to special [t]he activity involved by absence of criminal the defendant which presence or threat the use or use of or violence or attempted express implied force violence”; any use or absence of “(c) presence prior force or [t]he that, construed, felony literally language conviction.” Defendant this urges crime as jury allows the to count the violent circumstances current (b). under factors aggravating (a) factors both force or activity [involving] We have held that the term “criminal (b) limited to other than violence” used in section 190.3 factor is conduct penalty being contemplated. the immediate circumstances for which (Me death 44 lton, v. 763; (1987) Cal.3d at Miranda supra, p. People 594, 105-106 744 P.2d But as those cases Cal.3d [241 by any ambi argument prosecutor, in the absence improper explain, rarely in or current instructions will have statute guity language such here. argument Defendant cites no prejudice. (Ibid.) improper caused Sentencing E. Failure to Delete Factors Inapplicable court, Defendant that the trial in instructing penalty complains task, jury its regarding sentencing inapplicable sentencing failed to delete factors from the list 190.3. of factors enumerated section point rejected v. Ghent Cal.3d 776-777 1250], and need not be v. reconsidered here. also People Melton, Miranda, 770-771; supra, Cal.3d 57, 104.) suggests instruction violated federal constitutional
law, but the authorities cited do not
Although juries
that thesis.
support
may be
properly
ignore
instructed
extraneous
in deciding
matters
934, 941,
(e.g.,
Brown
479 U.S.
L.Ed.2d
California
F. Requirement Extreme Mental Distress
Defendant next asserts the court erred in instructing the statu (in tory language) could consider whether defendant was influenced “extreme mental or emotional disturbance” when offense was committed. Defendant suggests that confining the evidence to an “ex treme” condition limited the improperly scope of the mitigating evidence *21 Ghent, admissible at the penalty phase. The point rejected was 739, 776, and need not be reconsidered here. also Brown (1988) Cal.3d 457-458 Ghent, argues that supra, Cal.3d is distinguishable. He observes that in the the present prosecutor case significance minimized the of the evidence of defendant’s mental distress arising from his childhood experiences and the breakup of his marriage. The prosecutor questioned whether such disturbance, distress would amount to an “extreme” but he stopped short of asking jury ignore such evidence as legally irrelevant Moreover, to the penalty issue. the court expressly instructed the jury (through a modification of the standard statutory it language) that could a as a basis for that he offered defendant’s character any aspect
consider here. We that Ghent controls than conclude sentence less death. Unlocking Jury the Deadlocked G. at on November began their deliberations jurors penalty
The They the day. were excused for They 3:43 a foreman and picked p.m. a reach day, 4:30 the but could not following deliberated from 9:30 to 18. 2:25 p.m. at 9:30 a.m. on November At verdict. Deliberations resumed “We, the a note which stated that day, the foreman sent court The The for will not change. at an 11 to 1 vote. one vote is life and jury, are We feel be to reach firm the death we will unable penalty. other hold a verdict.” (Because the who over jury. judge presided
The court convened the unavailable, jury’s had been to hear the assigned trial was another judge jury court if he verdict.) hopelessly The asked the foreman believed .” yes talked . . . The deadlocked. foreman “We’ve it over replied, testimony might court rereading asked whether a of the instructions discussed, not been and the foreman such measures had help, replied they According and that he was not would the situation. improve sure foreman, only was reached after one ballot. deadlock jurors, other and several of them questioned The court some that further instructions expressed hope confirmed deadlock but might Although juror from about a verdict. one bringing the court assist futile, juror further be disagreed believed that deliberations would another an- of the instructions. The court expressly requested rereading instructions, nounced its intention reread the then dismiss the jurors day, day for the them back the to resume deliber- bring following objected ations. Defense neither to this nor alter- procedure counsel offered foreman, however, native that the suggestions. requested instructions they’re be in the “So that fresh in our mind.” The court given morning agreed, day. and dismissed the for the
The next defense moved for a mistrial on the morning, ground counsel after had that to force a of deliberations announced resumption vote of 1 in death be the deadlocked 11 to favor of would equivalent and, recalling a death verdict. The court denied the motion after directing *22 jury, the reread the instructions. duty in these “It is of
Included instructions was the admonition that the each the a verdict you purpose arriving of consider the evidence for of at you if should you yourself, can do so. Each of must decide the case for but
959 a with only do so after discussion of the evidence and instructions the other you not hesitate an if are con- jurors. change You should opinion []f] However, you it is not be to decide any vinced erroneous. should influenced way any in a a the question majority jurors, because particular them, favor a decision.” such noon,
The jurors resumed their deliberations at 9:30 a.m. At the jury day excused for jurors. because of business of one of the personal n 20, They reconvened at 9 a.m. on November and 45 minutes later returned death. their verdict of Defendant’s motion for new trial argued unsuccessful jurors that the court had coerced the their returning into verdict. That repeated contention is here. 1140,
The applicable legal are well principles established. Under section the trial court is from precluded jury without discharging reaching a “unless, verdict unless both parties consent or at expiration of such time may as the court deem satisfactorily it proper, that there is appears no reasonable probability that the can We have agree.” explained determination whether there reasonable probability agree “[t]he ment rests in the sound discretion of the trial court. The court [Citation.] of however, must exercise its power, without jury, coercion so as to avoid displacing jury’s independent judgment ‘in favor of considerations compromise expediency.’ Rodriguez, v. (People supra, [Citation.]” 730, 775; Cal.3d see People Rojas (1975) 15 Cal.3d 546 [125 P.2d 1127]; A.L.R.3d v. Carter P.2d 353].)
No improper coercion occurred here. The trial court made no coercive remarks and exerted no undue on the pressure minority juror change his vote. Rodriguez, at 775.) p. The court merely determination, made a discretionary based its on examination of the jury, that there remained a reasonable probability the might deadlock be broken following a of the rereading penalty instructions. This determination entirely seems that, given reasonable the fact before announcing the dead lock, had only deliberated for days two only had taken one ballot, and that jurors several had indicated that such a reinstruction might a produce unanimous verdict. however, argues, that it is inherently coercive to refuse to a
discharge jury after of an 11-to-l learning favoring vote the death penalty. We disagree. always There is potential coercion once trial judge has learned that unanimous judgment of conviction is being hampered a single juror case, holdout favoring acquittal. such a judge’s remarks to the deadlocked jury evidence, regarding clarity the simplicity
960 verdict, case, or even the threat reaching a unanimous necessity of the verdict. produce well a coerced being night” might “locked for the up Carter, 810, 816-820, But cited.) 68 and cases v. Cal.2d (See People supra, by by said or anything was not realized done potential for coercion in case. court this
Here, by whose assigned judge deadlock was heard an proceeding as by juror have the holdout interpreted remarks actions could not been jurors voting 11 for conviction. with the taken agreement position an Carter, Moreover, made no 816-817.) 68 at the court (See pp. Cal.2d supra, or indicating possible repri- a verdict be reached urging remarks either not that the trial court did sals for failure to reach We conclude agreement. reasonably in that it was determining probable abuse its discretion also a verdict instructions. rereading penalty could reach after 484 231 108 S.Ct. (1988) v. U.S. L.Ed.2d Phelps 546] [98 Lowenfield case, urging to in charge capital deadlocked [approving supplemental objective a unani- jurors achieving to consult with each other with verdict].) mous Penalty
H. Disproportionate pun Defendant next asserts death disproportionate v. Dillon 441 (See People ishment for his offense. Cal.3d 390, 668 In 697]; Lynch P.2d re Cal.3d 217, 503 He some form of urges adopt P.2d also we review, a we comparative rejected. (See have sentencing proposal repeatedly Brown, Allen, 462; 46 Cal.3d at v. People supra, People supra, p.
1222, 1286-1288; Rodriguez, 777-779.) 42 Cal.3d at supra, pp. assertedly in which points published appellate to other cases more in mere offenses nonetheless resulted life sentences. “aggravated” Here, defendant, murder, to he and had according “only” committed one truly no prior “during criminal record. His crimes occurred aberrational life,” only he and years experi- defendant’s when was old period encing marital emotional difficulties. observe that defendant robbed and threatened response, them;
kill with a three restaurant shotgun employees, kidnapped one an eventually brutally robbed and to death kidnapped, strangled beat and, later, rob, elderly victim; only attempted a few weeks and threatened kill, of, other victims. nature sur elderly two and circumstances those defendant’s offenses bore little resemblance to involved rounding, Dillon, 441. cases Cal. 3d disproportionate-punishment such
961 Brown, Cal. 3d at 461-462.) 46 We conclude People pp. also death is not in this case. disproportionate punishment Deadly I. Assault With a Weapon indicated, was with charged robbing
As defendant three res- previously robbery as jury on well lesser employees; taurant was instructed as the deadly (ADW). offense of assault with a found defendant weapon him ADW guilty robbed two of the as to found the third employees, defendant, (Michael Armstrong). The evidence disclosed armed with a him lie on the shotgun, approached Armstrong and directed floor “Til robbed, your blow brains out.” the other two were Although employees no money was taken Armstrong. from the ADW now contends that count must be set aside
because the court jury, did not instruct the sua on the definition of sponte, an (CALJIC assault 9.00). No. That instruction would have advised the jury that assault is an unlawful attempt, with coupled present ability, to another, apply force to physical general with intent to commit an act which defendant, would directly result such (Ibid.) According force. properly instructed might have concluded that defendant had no intent to carry out his conditional threat.
The People concede that the sua foregoing sponte instruction have should been given. (See v. Valenzuela (1985) 392-393 Cal.App.3d contend, however, They 405].) that the error [222 was harmless because the assault were necessarily issues jury, adversely resolved defendant, in its other findings. (See Sedeno P.2d We disagree. jury, although assault, not on instructed the elements of was told that it a general intent crime requiring only proof of an intent to commit the act ADW, declared to be unlawful. The jury, finding also found commission, that defendant which, used firearm during its a finding to the according would People, include a implicitly finding that defendant to, had the to, present ability in fact attempted apply physical force to his victim to prevent his resistance. out, however,
Defendant points
that we have
held ADW is not
previously
a lesser included
use,
offense within the crime of
with
robbery
firearm
purposes
ADW
requiring an
instruction.
v. Wolcott
(People
states,
Cal Rptr.
display insufficient to assault prove 12022.5 but [citation], under section firearm *25 inoperable gun use an unloaded or deadly The of with a weapon [citation]. a . . convic support does not [citation], an sentence but. justifies enhanced omitted.) (Fn. tion for an assault.”
Thus, more necessarily nothing use jury’s implied the of firearm finding assume, from the a We cannot weapon. than a “menacing display” alone, had the found defendant firearm-use that the further finding to, to, his force to ability apply physical and in fact present attempted should be set aside. We that the ADW count victim. conclude Under Modify Sentence Ruling J. on Automatic Application 190.4, (e) Section Subdivision briefs; we asked for following original was not in the presented
The issue our review of the record. during once the arose briefing point additional returned, 190.4, a section subdivi- every case in which death is penalty that trial court must “review the sion in the (e), provides pertinent part account, evidence, consider, and aggravating take into be the guided . . as to . and shall make a determination whether circumstances mitigating aggravating outweigh the that the circumstances findings and verdicts jury’s contrary presented. are to law or evidence mitigating circumstances The findings The shall state on the record the reason his judge ....[][] for set his on the and direct ruling shall reasons judge application forth for 190.4, (§ (e), subd. italics they be entered on Clerk’s minutes.” added.) case, merely application
In the the trial court denied defendant’s present or his any findings ruling. reason for his stating modification without The state (“The denied.”) specific motion to reduce the is court did offenses, defendant’s lesser imposing reasons for consecutive sentences for Court) Rules of (see 421(a), but factors it rule Cal. sentencing employed in section 190.3. substantially were different from those specified that, evi light error argue concede the but here, a anal it harmless. we harmless-error Although performed dence also ysis during appeal, case in the trial had died we judge in a which survived, if remand for had “we would explained judge that case out of an simply the verdict-modification hearing application new on caution, familiarity trial with record judge’s abundance of since the and state reasons for his deter enable him to review the application would resources.” delay judicial little relatively mination with expenditure Heishman 45 Cal.3d (People v. 730, 792-795.) see 629]; People Rodriguez, also who tried the case available to judge present apparently is alive hear the matter on remand. we believe limited remand is Accordingly, on here. The trial should rehear the motion appropriate judge personally, If, however, unavailable, the basis of the record certified this court. he may be the motion heard judge before another same court. 1247, 1264, Brown fn. 7
P.2d *26 The judgment convicting deadly defendant of assault with weapon reversed. The of judgment conviction is affirmed in all other but the respects judgment of death the is vacated and cause remanded the trial court for the limited purpose of redetermining defendant’s for mo- application court, dification of the in verdict accordance with this If the trial opinion. standards, upon application of the appropriate denies the for application modification, it shall reinstate the of death. If judgment it the grants appli- cation, it shall enter a of judgment life Any without possiblity parole. subsequent be appeal shall limited to issues related to the modification application. (See Rodriguez, 794-795.) Panelli, J., J., Kaufman, J., Kennard, Eagleson, J., and concurred. MOSK, J., and Concurring Dissenting. I concurin the judgment insofar as it affirms the judgment of the trial court as to guilt and death-eligibility (except to the conviction for deadly assault with a With weapon). the noted, I exception find no reversible error the verdicts the affecting returned or the it findings made. dissent, however,
I from the judgment insofar as it vacates the judgment of the trial court as to As I shall penalty. at the explain, penalty the phase jury was exposed to a “crime” of which defendant had been prosecuted and —a acquitted “crime” that was inadmissible as a matter law. It is hard determine why with certainty prosecutor, the who the urged jurors to “fol- law,” low the himself violated the law by and introducing evidence arguing “crime”; of the why the court allowed him to do and so even instructed matter; on the or why defense counsel did nothing to the “crime” keep from the jury. But it is easy to see what flowed from the acts and omissions counsel; court, prosecutor, and prejudice to defendant and a fatal taint on the verdict of death.
At the penalty phase, prosecutor introduced in aggravation evidence underlying the “attempted murder” of Deputy Sheriff Chris in Smith
Nevada, struggle in a defendant’s rifle testimony discharged that including “I tried to to his that alleged grandmother with Smith and his admission trial and knew from before had one me.” As court counsel take with of, for, commenced, this prosecuted acquitted defendant had been even murder” Smith presented “attempted Deputy offense. prosecutor justifying a circumstance imposition in his statement as opening to the “crime.” The relating of death. The court admitted evidence murder”—two of “attempted called five witnesses to prosecutor prove that “crime” alone. He alluded to whom testified about “crime” asking murder” in his in “attempted closing argument again it The court could consider penalty. death instructed (if beyond “crime” it a reasonable determin- doubt) it found established die, whether should live or and twice ordered the instruction ing defendant All jury. from response reread deliberations in during requests while, counsel and did nothing. defense stood (hereinafter 190.3)
Penal Code section 190.3 section declares language no crimi- express that is event shall evidence of unqualified: prior “[/]« *27 activity for for the prose- nal be admitted an offense which defendant was Thus, (Italics added.) statutory cuted and the bars provision acquitted.” activity” “evidence of criminal “an for which the underlying offense prior mandatory terms defendant was and in and absolute prosecuted acquitted” merely a matter not the “label” as law. does bar mention of provision of bore, Attorney the General It evidence of the the offense claims. bars surrounding and all activity criminal the events. 190.3, I of I judge light compelled
When his conduct in section am to in acts engaged by conclude that the of misconduct prosecutor separate Smith, introducing by the evidence of the murder” of “attempted Deputy it in jury to the his statement to of presenting opening support imposition death, the of and to it in his for the by alluding closing argument course, it intentionally same Of is misconduct for a to purpose. prosecutor statutorily (1988) introduce evidence. v. Bonin 46 (E.g., People inadmissible 659, 687, It is 1217].) Cal.3d 689 also misconduct Cal.Rptr. [250 in v. intentionally (See, e.g., People to refer to such evidence argument. 171, 404, Ledesma 238 P.2d (1987) 729 [233 839] Mosk, J.).) (conc. opn. of
I also separate am to conclude that court committed errors compelled Smith, by “attempted by the evidence of the murder” of admitting Deputy on failing any prevent to take or correct the comments steps prosecutor’s “crime,” by and that it could instructing “reinstructing” and is, in It take the “offense” into account the determination of of penalty. course, duty “the of the ... to limit introduction evidence and judge
965 . . (Pen. material . .” argument counsel to relevant and matters accord, Code, 42 274 P.2d 1044; Ashley (1954) Cal.2d § [267 Also, duty trial . . there of the 271].) continuing upon part is a are instructed all matters properly upon court see to it the cause.’” (People to their decision of Graham pertinent 153], v. Keelin quoting People P.2d It is P.2d 56 A.L.R.2d Cal.App.2d discharge on that the its clear the face of the record court here failed duties with to the evidence of the murder” of “attempted Deputy respect Smith. view, my each of the of misconduct and each prosecutor’s acts
court’s errors must be deemed prejudicial. with, begin
To in the balance of circumstances and circum- aggravation sure, stances was close. To be mitigation aggravating evidence was revealed, substantial. But substantial too was the evidence. It mitigating that defendant was afflicted with example, various physical psychologi- disabilities, cal disorders and organic brain including damage; he had suffered abuse at the hands his he stepfather agemates; had been good, loving, and child hardworking good, and was himself a loving, father; hardworking evidently he had no record of activity criminal antedat- the Pizza ing offenses; Bowl he barely years and was old at the time of the crimes here and was then great emotional turmoil of a because stormy marriage. The closeness case confirmed fact that the jurors days deliberated over several before reaching their verdict and for a time stood at deadlock.
Further, the evidence of the “attempted murder” of car- Deputy Smith ried within itself a marked potential the balance of upsetting aggravating and mitigating circumstances to defendant’s detriment. The threat of preju- dice inherent in “other crimes” evidence (See, is substantial and notorious. 21, e.g., People Robertson (1982) Cal.3d 655 P.2d [188 (plur. opn.) [noting “the overriding of ‘other evi- importance crimes’ 279] dence
to jury’s the life-or-death determination”]; v. McClellan 793, 804, fn. 2 [citing 871] study that showing “Evidence of a prior criminal strongest record the single factor juries that causes impose the death That penalty”].) threat be when, here, must be greater deemed to still the victim of the “other crime” was a law officer: enforcement such evidence that the de- suggests fendant is altogether beyond the control society of civilized be can checked only by means of the ultimate restraint. no finding the prejudice, majority conclude that a reasonable juror
would not have beyond found a reasonable doubt that defendant attempted to use such would not have then proceeded murder Smith and Deputy death. I cannot agree. the
finding support First, beyond have found jurors or more of the could in deliberations one Smith. The to murder attempted Deputy a reasonable doubt that defendant Surely, on this more than sufficient. legally evidence of the “crime” was “whether, after view in the affirmative the question record we must answer any rational prosecution, in the most favorable to ing light the evidence beyond a elements of the crime could have found the essential trier of fact 443 U.S. (Jackson Virginia (1979) doubt.” reasonable S.Ct. L.Ed.2d assertion, the evidence introduced
Contrary majority’s pros- to the not demonstrate on the murder” of Smith did “attempted Deputy ecution “ambiguous” were surrounding shooting” that the “circumstances accidentally the gun discharged that there was a “substantial chance that ante, Indeed, summary the evidence 952.) . . . .” (Maj. opn., p. much. they which themselves shows as present assertion, contrary closing argu to the majority’s prosecutor’s Also ante, 952) on the (maj. opn., p. ment did not reveal a “lack of emphasis” concede, in they Smith. As themselves Deputy murder” “attempted his statement to closing argument prosecutor “emphasized [defendant’s] (Id. 949.) T me.’” at This p. tried to take one with grandmother statement, course, view defendant’s admission that he had his indeed to murder Smith. attempted Deputy assertion,
Finally, contrary majority’s jurors’ knowledge to the of Deputy defendant had in fact been murder” acquitted “attempted If the evidence of the “crime.” Smith would not have led them to discount better, reasonable—or they realistic—assump- allowed themselves to make tions, knowledge to conclude that such majority compelled would be attitude, “Defendant ‘beat likely jurors would be to cause the to adopt do it again.” once before—he will not rap’ *29 Second, have used the jurors in deliberations one or more of the could murder” of Smith to of death. “attempted Deputy support penalty of critical majority to assume that the evidence of the “crime” is not appear however, manifest, prose- on the facts of this case. It is that the importance murder” evidence as crucial: he presented “attempted cutor treated this in closing argument, in his statement and alluded to it his opening of whom testified about that called five witnesses to the “crime”—two prove treat why “crime” “There is no reason we should “crime” and that alone. ‘crucial’ than the so any prosecutor—and presumably this evidence as less
967
861,
v.
61
868
(1964)
it.”
Cruz
Cal.2d
jury—treated
(People
[40
841,
Indeed,
itself
clear indication
889].)
gave
395 P.2d
Cal.Rptr.
of critical
to its determination:
importance
that it considered
evidence
deliberations,
rereading
charge containing
it once
a
of
during
requested
the erroneous “other crimes” instruction and once
of
requested rereading
772,
v.
60
(See
(1964)
the erroneous instruction alone.
Ford
620, P.2d
Cal.Rptr.
[36
Accordingly, I am of the
that there is a reasonable
opinion
possibility
that each of the
acts misconduct and each of the court’s
prosecutor’s
errors
affected to
detriment the
marginally
jury’s weighing
defendant’s
aggravating
mitigating circumstances and its
determination
consequent
of death.
appropriateness
judgment
Reversal of
as to
432,
therefore
v. Brown
required.
generally People
604,
446-448
Cal.Rptr.
1135];
(conc.
id. at
463-470
pp.
opn.
[250
Mosk,
J.).)
be,
conclude,
may
It
majority
well
as the
appear to
that defense counsel
any
“waived”
claims challenging the
misconduct and the
prosecutor’s
whatever,
court’s admission of the
by
any
evidence
to make
failing
objection
mind,
express
implied.
my
But to
“waiver” merely denies a defendant the
right to have his
by
claims addressed
onus
does not
us of
appeal—it
deprive
the authority to reach
those claims
justice
interest of
case
capital
event,
any
claims
attacking
court’s instructions are
not waived
823,
counsel’s
object.
failure to
v. Chavez
(People
(1985) Cal.3d
830 [218
Code,
372];
when,
P.2d
see Pen.
This
1259.)
is so even
§
here,
objection
no
was made to the evidence that is the subject of the
challenged
instruction.
v. Hannon
(People
(1977) 19 Cal.3d
600 [138
Even if we could not or would not consider the acts of misconduct and above, the serious errors identified we would be to reverse the required judgment death on a separate constitutional independent ground. Under both the Sixth Amendment to the United States Constitution and I, Constitution, article section of the California a criminal defendant has a right to the assistance of counsel. v. (E.g., Washington Strickland 674, 691-692, 466 U.S. 684-685 L.Ed.2d 104 S.Ct. 2052] [constru Ledesma, ing federal Constitution]; People 43 Cal. 3d at supra, p. [construing both the federal and state Constitutions].) right entitles the not to some bare assistance but rather to assistance. defendant effective (Strickland v. Washington, at p. 692]; L.Ed.2d at p. *30 Ledesma, supra, 215.) at p. 968 sowas defective
“A
claim that counsel’s assistance
convicted defendant’s
two
sentence has
components.”
reversal
a conviction or death
as to
(Str
require
at
v.
To has his claim of my defendant established beyond any ineffective counsel doubt whatever. assistance of First, he has shown that defense was deficient. performance counsel’s any keep “attempt Failure to make from evidence attempt to be [falling] ed murder” of Smith must be Deputy judged “representation . . . below an standard of reasonableness under objective prevailing profes 466 U.S. at (Strickland Washington, supra, p. sional norms.” every There was reason act and no reason to 693-694].) L.Ed.2d at pp. refrain certain—the evidence was inadmissible as acting. from Success was absolutely cost to the defense. matter of law—and could be obtained at no Moreover, as stated evidence threatened was prejudice above *31 Robertson, at v. 33 Cal.3d supra, (See, e.g., People and notorious. substantial McClellan, 2.) at fn. p. 54; supra, p. object a mere failure to “we have seldom found assert that majority (Maj. opn., reflecting incompetence.” counsel’s argument
to evidence or ante, record, however, a finding make such that we 951.) requires p. in their grounded failure to act was here. It reveals that counsel’s plainly section and unqualified prohibition ignorance express inexcusable activity” underlying criminal has declared “evidence of against prior 190.3 and acquitted.” the defendant was prosecuted “an offense for which Second, deficient performance preju- defendant has shown that counsel’s I should be prejudice pre- diced the defense. am inclined to believe not, however, in the case. I need decide the issue. This sumed context of this affirmatively. defendant has But for counsel’s prejudice because proved have been failings, there is a reasonable that the result would probability different: the misconduct and errors identified above would not have oc- By they curred and the would not have arisen. allow- prejudice engendered such infect the coun- ing prejudicial misconduct errors to proceeding, sel’s deficient confidence in the outcome.” performance “undermine[s] (Strickland 466 U.S. at L.Ed.2d at Washington, p. p. Accordingly, verdict of death should not stand. reasons,
For the I foregoing would reverse the as to judgment penalty. Broussard, J., concurred. for a was denied 1989.
Appellant’s petition rehearing August