*1 No. 20910. Oct. [Crim. 1980.] PEOPLE,
THE Plaintiff and Respondent, JACKSON,
EARL LLOYD Defendant and Appellant. No. 21285. Oct.
[Crim. 1980.]
In re EARL LLOYD JACKSON on Habeas Corpus.
Covnsel Shemaria, Court, Joseph under appointment by the for Defen- Supreme dant and Appellant and Petitioner. General,
George Philibosian, Deukmejian, Attorney Robert H. Chief General, Moore, Assistant S. Attorney Clark Assistant Gen- Attorney eral, Schwab, Norman H. Sokolow and Howard J. Deputy Attorneys General, for and Respondent. Plaintiff
Opinion *17 a Jackson from
RICHARDSON, J. appeals Earl Lloyd Defendant of two his conviction following the death imposing penalty judgment He also seeks and two counts of burglary. of first murder degree counts was re- ineffectively on his claim that he a writ of habeas based corpus will affirm the As will we appear, his trial counsel. presented by habeas relief. corpus and deny petition judgment, Gladys with the murders was charged In October information, he was amended aBy subsequent and Vernita Curtis. Ott vic- of these two of the residences with additionally burglary charged of the death authorizing imposition circumstances tims. As special Code, (former Pen. to this case the 1977 law applicable under that code unless are to further references statutory 190 et all seq.; § (1) cited), further alleged the amended information otherwise was committed wilful, and was deliberate and premeditated Ott murder 190.2, (c)(3)(v)), (2) (id., subd. and the course of a burglary during § murder killing act first degree by an additional defendant committed (id., (c)(5)). subd. Mrs. Curtis defendant who to represent defender was appointed
Initially public allegation. circumstances denied the special and then pleaded guilty there existed a declared that Thereafter, defender’s office the public appointed represent Veganes and Attorney conflict of interest defendant’s behalf were made on motions pretrial Numerous defendant. (1) court, sup- motions to: including by and denied Veganes, Mr. officers; (2) limit statement to police tape-recorded defendant’s press beliefs concern- jurors’ regarding prospective dire examination voir individ- examination of (3) the voir dire conduct penalty; the death ing veniremen; (4) of the other the presence outside jurors ual prospective dire; (5) an additional voir appoint audience during exclude the public (6) a separate jury phase; permit the penalty to assist during counsel the prosecutor’s disclose phases; and penalty for the guilt panel certain book,” photographs unduly prejudicial exclude as “jury of the victims. on De- commenced the prospective jurors
Voir dire examination of The 8, 1978, phase December 19. guilt concluded on cember and was 8, 1979. to January and continued of the trial commenced thereupon exten- witnesses prosecution defense counsel cross-examined Although sively presented he offered no lengthy closing argument, affirmative evidence on and defendant did defendant’s behalf not take the stand. The found defendant of two counts of first guilty degree murder two counts of in the first The burglary degree, charged. found jury also true circumstances which were special both alleged in information.
The penalty phase commenced on 9. called two January People *18 rested; witnesses and presented defendant no evidence. Fol- mitigating counsel, extended lowing arguments by opposing was instructed jury and 12, commenced On deliberations. fixed the January penal- ty at death. Following trial, denial of his motions new for arrest verdict, and judgment, for modification of the was sentenced to death for the Ott murder to state law for prison prescribed by as the Curtis murder and the The is burglaries. automatic. present appeal 1239.) (§
We summarize the factual defendant’s of- background underlying record; 29, fenses gleaned 1977, from the trial August On her Curtis, widow, found neighbors Vernita an. 81-year-old uncon- lying scious on bedroom floor of her apartment Beach. Her Long set, television toaster and other items were missing. Mrs. Curtis lived alone. Paramedics called scene observed that she bore severe fa- cial bruises" and and subsequent examination disclosed swelling, head, multiple injuries to her neck and days hospi- chest. After four talization Mrs. Curtis died her injuries. Gaines,
A neighbor llena lady, testified at trial that while Mrs. Cur- tis was being removed on a stretcher from Curtis apartment, defendant, Gaines, an smiled acquaintance stated to laughed Gaines, witness, in the words of the that “He was the one who did that. He said he did that.” On cross-examination Gaines further testified who, trial, she had been with Elton a living Boyd had separate been convicted of Mrs. Curtis. murdering Other evidence adduced trial disclosed that Boyd was defendant’s commission accomplice during of the Curtis murder. witness, Lewis, of another Debria preliminary hearing testimony
was into read the trial record. She described a with conversation defen- 11, 1977, dant on which defendant a September during pointed Lewis, article the Curtis murder and declared to newspaper reporting he had so act- why asked defendant I done.” When Lewis “This what him ed, been still and given he “If had been still—had replied she just today.” around walking that she would have been money, 1977, of her body Toni McDowell discovered September On Ott, mother, widow, a bed Mrs. Ott’s Gladys 90-year-old lying from the lower floor directly hallway which was across apartment of Mrs. Curtis a friend and neighbor of Mrs. who both apartment McDowell, was a apartment the Ott Ott. to the witness According were Mrs. Ott’s missing. and a television set and toaster “shambles” to death. and she to have been beaten badly appeared face was bruised massive facial and including An disclosed numerous injuries, autopsy ribs, bruises, laceration appar- fractured and an extensive vaginal neck Defendant’s foreign fingerprints caused insertion of a ently object. other in Mrs. Ott’s doorjamb objects were found on a closet and on Lewis, defendant in his September to the witness apartment. According ladies, Mrs. Curtis and conversation with her described both *19 Ott, . they were a nuisance and. what bags .got Mrs. as “two old [who] deserved.” Hall, witness, cousin, de- Debra defendant’s testified that
A further fendant, the Curtis and to a news article both referring concerning did, it I murders, I that was because Ott “This is what acknowledged some money.” needed- him, were defendant surrendered police seeking
On learning statement. In this to make a agreed tape-recorded officers crimes, statement, defen- any after initially denying participation he and others had both burglarized admitted that dant ultimately also admitted that these during Curtis Defendant apartments. Ott and held Mrs. Curtis while his accom- he hit Mrs. Ott once and burglaries were her. plices striking Mikles and Ronald Mark jail, in the county cellmates
Defendant’s to them that defendant had admitted McFarland, trial that testified at witnesses, defendant to these According both women. he had killed face, had in the Mrs. Ott struck repeatedly that he had boasted sexually. Ott to attack Mrs. a wine bottle used introduced evidence the prosecution of the trial phase At the penalty further slaying, including the Ott nature of aggravated regarding evidence defendant’s sexual mistreatment confirming of Mrs. Ott dur- ing Defendant’s counsel burglary. prosecution cross-examined witnesses and made a lengthy closing but declined to intro- argument duce evidence on defendant’s own behalf.
On appeal, defendant makes numerous We consider each arguments. and, case, contention separately because of the nature of the our analy- sis is somewhat extended. We conclude none of the contentions has merit (Cal. and that no has occurred in this miscarriage justice case VI, Const., 13). art. § Additional Counsel
1. Request Appointment Defendant asserts that the trial court erred in his trial denying counsel’s pretrial motion for the of an additional appointment attorney indicated, to assist in arguing case. As to trial de previously prior fense counsel made a series of motions to be concerning procedure trial, followed at a motion under section 1095 for the including appoint motion, ment of additional counsel to the case. In of the argue support counsel asserted that “in view of the circumstances surrounding detail, case.. .without I going into submit to this Court that such an at this appointment particular of an assistant the death stage argue penalty phase of this case. . tend particular .would to follow the mean and intent ing to that Legislature, pursuant [1095], section in a *20 case such as this.” Without further in submitting argument support of motion, the defense counsel that such additional counsel urged be ap trial, pointed to sit the entire in during order to become familiar with the case. The court denied the motion. (1)
Defendant now that contends section 1095 the imposes upon demand, a court to on additional mandatory duty appoint,' counsel to case, (2) the argue issues of a and even if section 1095 is capital deemed rather than the trial court under the discretionary mandatory, circumstances here abused its discretion defendant’s motion. denying Neither contention has merit. 1095, 1872,
Section enacted in “If provides that the offense charged death, is punishable with two counsel on each side the may cause. argue case, discretion, In other the court its restrict the may, argument to one counsel on each side.” It is apparent from the readily language the section that it does not to authorize or mandate the ap- purport
286 at but to pointment public expense, only permit of additional counsel In to section 1095 the of the case two counsel. argument referring by Natale 199 Cal.App.2d People the court in appellate observed, this is “The section right guaranteed by Cal.Rptr. 491], than one attorney a who has retained more applicable only to defendant case It the in a give capital as in the case. does not defendant counsel him, than but represent to have more one counsel to right appointed has counsel the right allows defendant who retained merely multiple to have at least two of them the case.” argue Natale is further confirmed holding
The correctness of ti- in a separate appointment fact that the counsel appears subject Code, tle and of the Penal entitled “Pleadings Proceedings Before detail (Italics added.) 987-987.9) (§§ explain These sections Trial.” counsel, inves- appointed of a defendant’s to right nature extent is that section significant It tigators experts public expense. hand, title of the other is included within a subsequent on of the Trial code the Commencement “Proceedings denominated After (italics added) “The designated and Before under Judgment” chapter Trial,” which deals such challenges title with matters et (§ (§ seq.) et the order trial and instructions seq.), similar matters. procedural however, in contends, regardless legislative
Defendant
tent,
an
of section
equal protection principles
interpretation
compel
1095 which
defendant
the absolute
indigent
right
will assure
every
his
at the
of an additional
behalf
appointment
attorney
argue
of a
defendant’s
penalty phase
capital
argument
case. Underlying
is available to
which
unsupported assumption
any advantage
must,
extended to an
of constitutional
wealthy
necessity,
one,
impecunious
Equal
thus
of treatment.
assuring
protection
equality
we
however,
not
As
do
demand such
principles,
practical parity.
noted in In re Antazo
P.2d
287 12, 891, 899, (1956) 351 U.S. 19 L.Ed. 76 S.Ct. v. Illinois [100 fin 585, are 55 A.L.R.2d demands 1055]). Accordingly, equal protection court, discretion, in to addi- by appoint satisfied trial its permitting tional if the in case particular counsel circumstances a public expense (See 987.9, appear require pay- to such an appointment. authorizing § ment for for the or experts, preparation others “investigators, defense.”) presentation of the contends, however,
Defendant that the trial court alternatively abused his for its discretion motion additional summarily denying He counsel. the trial court should have held a further suggests to or determine whether not the hearing appointment additional would counsel have been to defendant a appropriate assure fair trial. We cannot agree.
Defendant had ample to to opportunity the court addi- explain any motion, tional factors which his he to supported but failed furnish any specific, above, counsel, reasons in that compelling regard. explained As detail,” “without going into relied merely upon “the circumstances surrounding the case.” In an analogous situation a involving defendant’s to request participate to the we personally arguments held that jury, a defendant that, is required make “substantial showing” among other things, “the cause of will justice thereby served.” v. (People (1969) 678, Hill 70 Cal.2d 692-693 452 Cal.Rptr. P.2d 329]; [76 see also v. Marsden 2 People Cal.3d Cal.Rptr. 156, 465 P.2d [right counsel is not re- discharge absolute but 44] quires “a sufficient showing” impairment substantial right counsel].) Because defense counsel made no factual assertions which have might called for an additional the trial court au- hearing, fully thorized to rule on the based question on counsel’s argument alone.
case Marsden, is thus distinguished from wherein the trial court failed to afford fair explain the factual opportunity basis for his (See claim inadequate representation. also Lewis People cf„ Cal.3d 496 40]; P.2d Pierce v. United 1979) 1237.) States (D.C.App. A.2d
Pierce, defendant, relied on supra, similarly inapposite that case defense counsel candidly admitted his lack of liti- prior gation experience render his services might inadequate and neces- might sitate case, additional In legal assistance. was no present only made, such admission but the trial court had full to observe opportunity *22 counsel the course of extensive argument pretrial on matters prior
288 its motion, ruling present positioned and well upon accordingly to evaluate counsel’s ability. issues legal underly-
It noted that neither facts nor should be complex require case have been so appear ing present conclude, law. ac- as matter of We assistance of additional counsel and within its sound the trial court acted cordingly, properly that motion section defendant’s under 1095. denying discretion 2. Trial Counsel Adequacy of
Defendant’s contention of ineffective trial representation pointed and has at both the of his trial. Defendant also guilt penalty phases which, filed a record corpus petition alleging habeas facts outside (See demonstrate such v. Frierson assertedly, inadequacy. People 142, 281, (1979) 587].) 25 Cal.3d 157-158 599 P.2d Cal.Rptr. [158 filed and a to the or- having supplemental a return return People, cause, der to and the that the habeas parties stipulated show having traverse, as a the issue corpus petition may treated is thus properly (See (1979) re drawn. In Lawler Cal.3d Cal.Rptr. 833, 588 1257].) P.2d counsel that his trial Defendant
a.) argues Phase. The Guilt manner; (2) in a (1) timely the case investigate proper failed to: ad trial; (3) certain object defense at capacity a diminished present argument evidence; during closing defendant’s guilt verse deny examine each contention. to the We jury.
Defendant that his counsel until complains improperly delayed trial had before an Yet nei commenced already obtaining investigator. ther the on appeal corpus petition affirmatively record nor habeas discloses either the need for such assistance or extent precise we have basis what counsel’s own efforts. Thus no pretrial investigative or ever for counsel failed to either the facts concluding investigate the law in the manner of a required reasonably competent, diligent (Frierson, 161; advocate. 25 Cal.3d at see Peo supra, conscientious Cal.3d 590 P.2d ple Pope concedes, know 859].) As counsel does not appellate readily “Appellant if Mr. did any Appel his own.” Veganes investigation [trial counsel] late trial did not interview counsel counsel speculates “probably (Italics added.) ...” An so and con- speculative witnesses. assertion *23 form a of jectural incompetence cannot the basis for counsel’s finding Moreover, on ground specula- lack of defendant’s investigation. record, tion refuted a used in by which contains form counsel his fees which he stated that he had supporting request attorney’s in defendant, relatives, interviewed his several
personally psychiatrists, district other defense and and a trial attorney, attorneys experts, judge familiar with death penalty procedures. that,
Of more significance is fact with one hereinafter exception discussed, evidence, to fails what favorable if specify any, could have been from any obtained available witnesses. We have never counsel to all required witnesses v. investigate prospective (People (1970) 1 Cal.3d Floyd 464 P.2d and 64]) we cannot presume from the mere fact of counsel’s prejudice alleged observed, inaction. As we order a recently in to establish success ful claim of inadequate trial representation, defendant must “that prove counsel’s acts or omissions resulted the withdrawal of a potentially 412, 425.) meritorious defense.” 23 Cal.3d (People Pope, Fur supra, ther, defendant must “affirmatively show that the omissions defense issue, counsel involved a crucial that the omissions cannot be ex plained the basis of choice tactics.” knowledgeable (Floyd, 709.) Cal.3d at supra,
In criteria, an effort to meet the defendant has foregoing Pope in his alleged habeas corpus petition that trial counsel failed specifically investigate present potential diminished capacity defense based, in combination, upon defendant’s low and his use supposedly I.Q. of marijuana on the day on which one of the oc burglary/murders curred. essentials, Reduced to its petition regard this alleges (1) trial, defendant had told defense psychiatrists, prior that he had “smoked some grass” on the of the Ott morning defen burglary, trial, dant’s counsel had former that defendant suspected, prior lacked average and counsel had intelligence, planned investigate matter, to a according psychiatrist’s opinion, persons recent “lowered sensitive to the intelligence” may ingestion more mari juana from the of their and behavioral standpoint “judgment controls” than of normal persons intelligence. however,
Our examination of the fails to reveal sufficient petition, to establish even case under the standard. The Pope facie prima facts petition does not defendant has a allege low affirmatively fact *24 day question, or he consumed on the in or marijuana that
I.Q., actually affect, that was sufficient to or that amount he consumed allegedly in some relevant manner. In affect, capacity did in his mental fact short, we defendant fails to state facts from which determine might whether or not a diminished defense was indeed to capacity pertinent case, (See, i.e., a meritorious” defense. e.g., his constituted “potentially (1972) v. Carr 8 Cal.3d 294-295 People to its effect prove P.2d amount of smoked or on marijuana 513] [failure In this case differs from the defendant].) regard, present markedly Frierson, There, 3d situation Cal. 142. defendant presented supra, a appeal capacity, similar claim of diminished based on presented trial that defendant had taken dust” and testimony “angel appeared habeas corpus supplemented out.” Frierson “spaced petition ap detail facts peal by considerable both the describing underlying defense and trial counsel’s total failure to or it. present investigate
We have noted in the a counterdeclaration defendant’s trial by record that a diminished de- pursue capacity counsel his failure to asserting According fense was the result of a tactical decision. knowledgeable, counsel, examined three each of whom psychiatrists, defendant was by concluded that defendant’s mental was not diminished a capacity Moreover, the reports result of alcohol or contained drugs. psychiatric material, statements de- including “damaging” by other unfavorable presentation fendant himself. trial counsel concluded that Finally, upon voluntary of a diminished defense based capacity primarily from de- consumption marijuana required testimony would have him and perhaps damaging fendant to intense personally, exposing cross-examination, from the provoked ju- reaction “negative" the foregoing rors. the factual assertions in declaration Significantly, defendant. stand uncontradicted essentially Frierson, an presented where counsel actually Unlike (25 defense” Cal.3d diminished capacity “incomplete, undeveloped case, for tactical reasons 164), trial counsel elected in the present under such that strategy We cannot counsel’s say such a course. forego oppos- has failed to allege Defendant was unreasonable. circumstances decision was that counsel’s affirmatively demonstrate facts which ing failure or a but, rather, incompetence from resulted tactical merely the case. Ac- the facts of investigate or to research law reasonably counsel conclude that trial ground we unable on this are cordingly, 709.) at p. Cal.3d (Floyd, supra, representation. inadequate rendered addition, In counsel trial failed argues vigorously to pursue formal which have pretrial discovery procedures assist might ed defense Once efforts. neither the record nor the habeas again, that, case, petition this supports finding counsel failed aspect Indeed, to act in a manner. the record shows competent reasonably trial counsel relied an upon discovery “informal” with the arrangement *25 Further, prosecutor which was the court. the approved by trial record fails to disclose the that lack of formal any discovery procedures preju diced defendant. The uncontradicted declaration the prosecutor he to reveals that defense counsel of in gave copies document his every files months trial. before The this prosecuting attorney supplemented by delivering disclosure to defense counsel materials additional which thereafter surfaced. The declaration of counsel defendant’s trial con firms the with the prosecutor “fully complied” discovery informal instance of in arrangement. only possible delay revealing evidence to defense counsel involved the the statements of witnesses Mikles and McFarland, below, defendant’s cellmates. discussed Although, statements, record indicates we some these conclude delay disclosing that defendant’s interests could not have been affected there adversely In by. response to defendant’s claims trial surprise, of court Further, him it immediately granted his continuance. requested prompt ly appointed an investigator to assist defense counsel in and analyzing impeaching the of probable testimony these witnesses. there is Finally, thg no of suggestion the manner in which failure of asserted defendant’s trial counsel to formal pursue discovery procedures resulted in pretrial the loss any might of evidence which have assisted his defense.
Appellate challenges counsel the failure of defendant’s trial evidence, counsel to object to admission of certain including defen officers, dant’s own tape-recorded statement to police of testimony McFarland, the witnesses Mikles and of Dr. Breton testimony re wounds, the nature and garding extent victim Ott’s and the preliminary and hearing witnesses Lewis. testimony Rushing assertion, however, to this Contrary record indicates that trial coun sel did raise to much timely objection foregoing evidence. Furthermore, and equal as set forth in importance, subsequent sec tions of this all opinion, of the evidence complained of properly admissible trial would objections have been unavailing any event. failure Any could not have object amounted to that withdraw al of a defense potentially required meritorious to establish the addition, inadequacy counsel under our standards. In Pope as we observed, evi items of particular the failure object have frequently on counsel’s involves tactical decisions usually dence a matter which v. Frier (People establishes counsel’s part incompetence. seldom son, cited.) It therein has been and cases Cal.3d supra, because solely of objections, noted that “The indiscriminate use aptly ” . . available, . justice. the client nor the cause of are aids neither they (1974) 43 Cal.App.3d v. Thomas (People would have tactical advantage We cannot
226].) speculate of admissi futile to the repeated objections proffer been gained by ble evidence. incompe counsel for alleged counsel criticizes trial
Appellate withdrawn, motion, subsequently in failing tence to renew an earlier asserted upon arbitrary circumstances based special allegation strike *26 discuss Yet counsel fails to practices. appellate selection prosecutorial motion, its success. or the chances of either the merits of probable prosecutor’s have been the the basis of the motion would Presumably an penalty accomplice decision not to seek the death for Elton Boyd, Had such been its defendant commission of the Curtis murder. during merit, for defendant’s multiple would have lacked premise, motion victims, Ott, constituted a and would have murders of two both Curtis different prosecutorial reasonable basis under the circumstances Indeed, aby defendant’s conviction Boyd. treatment of defendant and circumstance” multiple “special of those murders constituted very (Former case. present death in the imposition of the permitting 190.2, (c)(5).) subd. § that, it con urged of claimed inadequacy
As another basis murders, argued trial counsel ceding complicity defendant’s guilt phase. of the argument portion his client against during closing however, find arguments, the lengthy closing We have reviewed must be re It argument. or in counsel’s nothing incompetent improper his involvement in both admitted called that defendant himself had he introduced witnesses and that in conversations with various murders Nor does he him. no which have exonerated evidence whatever might witnesses what testimony what from attempt at this time to suggest it is under entirely Accordingly, to aid him. presented have been might evidence, counsel, incriminating given weight standable trial instead but client’s innocence declarations of his made no sweeping that although namely, a more realistic adopted approach, aided have may burglaries, committed both others have may deaths, the victims’ none- the acts of violence which caused and abetted and lacked the unpremeditated requisite such acts were theless case, tac- “good As stated in a recent trial deliberation or intent to kill. v. Powell candor” with the jury. (People tics demanded complete cir- 109].) Under the Cal.App.3d with incompetence. we such candor equate cumstances cannot Thus, defense counsel in reviewed some of closing argument the evi- client, dence against his and emphasized various defects and in the gaps deliberate, evidence and in the prosecutor’s theory premeditated mur- der. He urged the strongly jurors to decline find any special circumstances which would have permitted of the imposition death pen- alty. Defense counsel stressed such matters as the motive for monetary entries; the lack of on the fingerprints wine bottle assertedly used on Ott; the victim the general unreliability of the of the various testimony witnesses; prosecution defendant’s constitutional to decline to right tes- behalf; tify on his own and his cooperation surrendering officers when he learned were they him. The seeking defense argument comprises 48 pages In transcript. that trial contending counsel’s pre- defendant, sentation prejudiced his appellate counsel focuses upon only fewa brief We passages. conclude that counsel’s argument reason- ably competent considered in the light overwhelming evidence of *27 defendant’s guilt.
b.) The Phase. Defendant’s Penalty contention re primary garding trial counsel’s at the is inadequacy penalty that counsel phase failed to present evidence which have any mitigating led the might jury to conclude that the Yet, death should be penalty imposed. unlike Frierson, 142, 164-166, v. People Cal.3d wherein a similar supra, advanced, theme was successfully defendant has failed to demonstrate (by otherwise) his for or petition corpus habeas what evi mitigating dence, surrender, if any, beyond his and was available youth voluntary below, to counsel. As trial explained argued counsel length in an to attempt persuade verdict, to a more jury render lenient frequent references to the making evidence adduced during guilt and phase to factors possibly such as defendant’s and his mitigating age cooperation circumstances, with the Under the we police. find no basis that trial concluding counsel afforded defendant inadequate repre sentation at the penalty phase. Frierson,
In we supra, observed defendant had submitted decla- witnesses, friends, rations from various relatives and including conceivably material which “containing of defendant acquaintances (P. 165.) we Although recognized his conduct.” mitigated have might event, we further trial counsel after risk of “second-guessing” tac- in the area of trial counsel’s exercise of discretion that trial noted in the of the facts light and informed one tics “must a reasonable trial, at the time to counsel and options reasonably apparent (P. 166.) upon investigation preparation.” founded reasonable represen- inadequate afforded that counsel in Frierson We concluded People We distinguished penalty phases. both the tation at guilt P.2d 191-192 (1969) 70 Cal.2d Durham to particular application principles which contains an 198], opinion Sullivan, we Durham, Justice speaking through In before us. the case in failing incompetent counsel was defense the contention that rejected case, reasoning a capital at the penalty phase to call witnesses evi- available have been some there must “It suggested follows: in his produced have been might which penalty dence in mitigation resulted in such evidence behalf, produce any the failure to and that in original.] infirmity. constitutional [Italics so Allegations representation
“We do not this suggestion. accept must be supported as to amount to constitutional defect inadequate has speculative pointed more than arguments. [Citation.] Defendant have been which mitigation might presented no evidence specific who, in his behalf, has no witnesses called his he named behalf; if On the other issues. would have him favorably testified hand, well- to the presented penalty jury it that counsel appears appealed in defendant’s behalf. . .and argument generally reasoned It further .. that appears. in a manner. persuasive the mercy . . care- after a [calling testify]. . .decided against counsel. *28 Finally, to scope the of cross-examination.... ful consideration the the pen- at presented by prosecution each witness subjected counsel In of the of circumstances to cross-examination. view phase totality alty the afforded defendant at cannot that the representation we conclude the effective aid in a denial of his right herein resulted penalty phase added; (P. 192, see also People in that italics proceeding.” of counsel Hill, counsel, of 690-691 establish inadequacy 70 Cal.2d supra, [to failed to call and must which witnesses counsel specify defendant must the of their materiality testimony].) establish Durham, As in case is from indistinguishable The present have Durham, might to no witnesses who herein has pointed defendant offered opinion Justice Mosk’s mitigating testimony. dissenting suggests that defense counsel should have called defendant’s Mat grandmother, Jackson, stand, tie and the witness that he was incompetent failing record, however, to do so. indicates that Mrs. Jackson was nearly and, Counsel, 90 years old in defense counsel’s was “senile.” opinion, that he had found no effective witnesses to on defen realizing appear dant’s at behalf the the penalty phase, carefully explored possibility but, cons, Mrs. Jackson after and calling pros ultimately weighing decision, decided against so. His and literally teeming doing inherently considerations, reasonable, with tactical is one which competent, and counsel have made. this diligent might Under circumstances of case, that decision required counsel of numerous balancing by careful factors, (1) the including witness to herself in co ability express fashion, herent the content of her testimony, probable effect impact her testimony upon jury. very Counsel might well Jackson, have determined that Mrs. reason of advanced age (and demonstrated inability to communicate in her a rational manner unshaken belief that defendant was innocent despite overwhelming him) case against would not assist at the phase, and penalty the jurors indeed react might negatively to her testimony. With due respect under the Durham ratio dissenting to our colleagues, nale view of the we totality circumstances cannot conclude “[I]n the representation afforded defendant at re herein penalty phase sulted in a denial of his right effective aid counsel in that (70 proceeding.” 192.) Cal.2d at p. addition, Durham,
In as in trial counsel presented herein to the pen- alty jury reasonable closing argument upon based a theme primarily which (he stressed the factors: following age defendant’s 19 years offenses), old when he committed the his with the cooperation police, life, the value of all human of our responsibility capitalistic society defendant, for “creating” persons such as and the need for the exercise in order to alleviate mercy both social and racial tensions. Durham, Furthermore, as in trial counsel in his client’s in- advancing terests phase, took reasonable additional measures such witnesses, as cross-examination of prosecution objection prosecution instructions, evidence and proposed and submission of favorable “special *29 verdict, circumstances” instructions. Finally, following coun- jury’s efforts, sel continued trial, his defense filing motions for new for arrest of and judgment, verdict, for modification of based on a wide of variety grounds.
296 has had that he file herein discloses
Trial counsel’s declaration on law, murder including of criminal in prior experience practice years with and consulted judges that he frequently trial participations, case and took educational the trial of a capital regarding other lawyers have ar “Defendants an recently As subject. expressed, on that courses a trial for during to them before available weapons senal of should not Mental strait jackets defense. meaningful [Citation.] choose selectively who wish to defense counsel thoughtful on placed . .is advocacy. or which of type which is best for defendant weapon for their what believe is a result they satisfactory to reach designed best Cal. Cal.App.3d v. (People Espinoza client.” 803].) Rptr. his counsel’s challenge competence
Defendant’s final to trial circum mitigating to to the as a present jury based on counsel’s failure (if fact) it consumed fact indeed was that defendant had stance the (See former on the of Ott marijuana day some burglary/murder. noted, (c), we neither 190.3, As have (j).) previously subds. (g), § here filed defendant appeal corpus petition by record on nor the habeas Moreover, as for this support theory. in contains sufficient factual above, that his affirmatively failed to establish indicated defendant has knowledge on basis of explained “cannot be counsel’s omission 694, 709.) Cal.3d Floyd, of tactics.” (People supra, able choice Durham, that, he determined declaration discloses Trial counsel’s based or of theory mitigation defense jurors any to withhold from a defense would because such marijuana, voluntary consumption on with face cross-examination testify have defendant required counsel, declara in his consequences. (According probable damaging “vicious tion, disclosing evidence rebuttal prosecution possessed hoped Counsel further persons.) other upon attacks” view its “limit the death decline to impose would in the his role offenses. particular defendant and knowledge” ed circumstances, we conclude coun Based totality did result at the penalty phase of defendant representation sel’s We fur aid of counsel. to the effective right in a denial defendant’s must be habeas corpus petition that defendant’s conclude ther which either would facts additional sufficient allege denied for failing evidentiary hearing an warrant or incompetence counsel’s demonstrate the matter. *30 3. Statement Admissibility Police of Defendant’s Officers
At trial the People permitted, were over defendant’s to in objection, troduce a statement defendant officers tape-recorded given by police statement, In during custodial defendant admitted interrogation. his in the Curtis and Ott murders. Defendant con complicity tends the statement was inadmissible because the officers represented to defendant the statement would be used for court (2) the officers purposes; promised order to in leniency confess; him duce their officers continued interrogation after defendant had invoked his to remain right silent. None of these contentions has merit.
a.) Alleged Deceit. statement contains tape-recorded some pre- liminary discussion between Officers Bohnlein and Kavenajugh regard- ing future use of the statement. to defendánt’s Contrary present assertion, however, the record fails to deception whatever suggest any Thus, record, these officers. to the after the according officers had recited the date and time of the interrogation, following conversa- tion ensued: Are use that? you gonna
“Bohnlein:
“Kavenaugh: Yeah, that’s all. from, Then we are use it gonna court purposes? “Bohnlein: “Kavenaugh: I don’t know. Then we . . just.
“Bohnlein:
“Kavenaugh: Just we so don’t forget anything. Do
“Bohnlein: mind if these you statements are taped? Uh, no.”
“Jackson: Officer Kavenaugh testified regarding conversation in foregoing the course of a pretrial conducted for the hearing purpose of estab- lishing voluntariness of defendant’s statement. According to Kavenaugh, officers interrogating use frequently tape recorder to assure that none the contents of an lost interrogation is or forgotten.
298 we were to use going to “whether recited above related The discussion it to refresh our court, were to use or whether we going tape indicates The quoted excerpt we dictate our reports.” memories when made no recording. They the officers discussed uses possible would not be recording the effect that or assurance to statement purposes. used for court at that, testified
We defendant himself although think it significant the re- surrounding the circumstances the pretrial hearing regarding statement, was deceived or did assert that he of his he cording Indeed, to the conversation prior use thereof. misled court regarding issue, defendant, other advised among the officers had carefully in court.” him against he told them “could used things, that anything case, v. therefore, from distinguishable People The present clearly 691, 684, (1979) 602 P.2d 702-703 Cal.Rptr. Braeseke 25 Cal.3d [159 apparent elicited defendant’s confession after 384], wherein officers interview. for an “off record” ly request to defendant’s acceding Here, defendant’s support record affords basis whatever no “false and state misleading the officers made present contention Nor does statement. ments” the ultimate use defendant’s regarding conversations of the softening-up” type the record disclose “clever 150, (1977) we 20 Cal.3d Honeycutt which condemned in v. People conclude, that de 698, We accordingly, 570 P.2d Cal.Rptr. [141 1050]. involuntary either or inadmissible fendant’s statement was not rendered fu reference to the possible reason of the officers’ brief interrogating ture uses of that statement.
b.)
defen
transcript
Leniency.
Promise
Alleged
one
during
interrogation,
dant’s statement discloses that at
point
to the
he “didn’t do it” (referring
defendant’s assertion that
following
“If
Curtis),
stated
Kavenaugh
you
and murder of Mrs.
Officer
burglary
did,
in the interroga
to feel better if
tell us.” Later
you
you
are going
tion,
if
out the house
point
he could
Officer Wren asked
Collette stated
taken and Officer
where some of the stolen
property
with us. You
“We
You are
you.
cooperating
wouldn’t let
see
anybody
If
cleared
get
up.
are
us to
this...
yourself
helping
are
helping
you
see,
could
you
so
could
nobody
we
there at
hide
you
night,
you
take
out
the place.”
was taken out of
point it
all the stuff back that
out and get
constituted, improper
remarks
Defendant contends that the foregoing
in-
which rendered his statement
or other benefits
promises
leniency
595,
(See,
v.
21 Cal.3d
Jiminez
voluntary.
e.g., People
20 Cal.3d
672];
McClary
580 P.2d
Cal.Rptr.
People
620].)
228-229
P.2d
We do not agree.
*32
“In
As we
in
Hill
v. Hill
explained McClary,
[People
(58
340,
we
908)],
In the it cannot be said that present reasonably Officer Kavenaugh’s statement that defendant would “feel if he better” con fessed constituted of benefit than any promise other the psychological benefit which “flows from a honest truthful and course of conduct” naturally (H ill, 549). at It is also supra, Cal.2d that noteworthy defendant himself of his expressly the conclusion state acknowledged ment that no or official benefits were him. tangible promised
Similarly, Officer help- Collette’s statement that defendant would be ing himself with the officers was not made induce by cooperating confession, statement or but occurred of a request context defendant escort the to the officers location of the stolen property. Sig- this had nificantly, request was made defendant admitted already after his in the Ott complicity burglary and murder. Furthermore, our previous support the conclusion that holdings remark would foregoing not have constituted or promise an improper inducement even had it made been purpose eliciting state- v. Ditson (1962) 57 Cal.2d People As we noted
ment. or find of threats 714], suggestion “we no 369 P.2d and exhortations help find searching questions We do promises. something But absent other the acts others. by revealing himself truth clear con- to tell the or his mere or exhortations than questions, ., there to be revealing or appears . help science himself facts. support finding record which would on the face of the nothing Hill, added; accord, People (P. 433, italics or coercion.” overreaching defendant him- urged “help 548-549 66 Cal.2d supra, [officers fashion, officers’ remarks to In we similar conclude self”].) involuntary. did not render his statement *33 Miranda Violation. c.) Defendant next that Alleged argues him his interrogated the officers invocation of improperly despite to remain and to an The rec attorney. constitutional silent consult right that, defendant, Bohnlein ord discloses to Officer prior interrogating Miranda to under v. carefully defendant his various explained rights 694, 1602, 86 Arizona (1966) 384 436 L.Ed.2d S.Ct. 10 U.S. mind, A.L.R.3d and then those do 974], inquired “Having rights you want to talk us these to the tran regarding allegations?” According to I want talk script tape recording, replied “No. to (Inaudible).” Thereupon, proceeded without to—yes— interrogation objection further defendant. anwas asser response his to Officer Bohnlein
Defendant argues silent, all rendering subsequent of his to remain thereby tion right a indicates It is well settled that once suspect statements inadmissible. further, all waive his constitutional rights, interrogation his refusal to Braeseke, 702; v. People Cal.3d (People supra, cease. v. must 861, 578 P.2d 237-241 Pettingill Cal.3d Further, 218, 226.) the rec supra, 20 Cal.3d 108]; People McClary, v. have found from which the trial court could must contain evidence ord the product at issue was that the statement a reasonable doubt beyond of defendant’s Miranda rights. waiver intelligent of a knowing Jiminez, Braeseke, 701; see v. People at p. v. Cal.3d supra, (People hand, court, we as a 608.) reviewing On the other 21 Cal.3d supra, inde record determine to must examine the uncontradicted facts waiver was of intelligent the trial court’s finding whether pendently must version accept we conflicting testimony, made. As properly that it the extent People, is most favorable to of events which Jiminez, 609.) supra, (See People record. supported by Defendant of his waiver of unsuccessfully litigated question con- stitutional First, at two rights separate stages of these at a proceedings. pretrial (Evid. on defendant’s hearing motion to exclude his statement Code, 402), the officers testified that defendant had re- interrogating § sponded to their affirmatively request to talk with him. According Officer us, “he wanted Kavenaugh, to talk to it response] [defendant’s Further, was not a ‘no.’” testified Kavenaugh that defendant said noth- ing to indicate he wanted to talk to an Officer Bohnlein attorney. confirmed that defendant never to talk an requested Defen- attorney. dant matter, was called to on the testify he claimed that he told the officers that “I wanted to talk to a lawyer,” that Officer to obtain Kavenaugh agreed lawyer defendant.
To assist in resolving foregoing conflicting testimony, police examined the sound-laboratory expert and testified that tape recording in his opinion transcription accurate and that defendant’s re- “No, had sponse been I want to talk without more to—yes,” than a second’s between the pause word and the rest of the “yes” sentence. The witness concluded that defendant’s could not response have includ- *34 ed a for an request because “There is not time attorney enough between the words ‘to’ and ‘yes.’”
Based upon its evaluation of all of the foregoing the trial testimony, motion, court denied defendant’s that “I satisfied stating beyond am reasonable doubt and the mechanics of the of this production tape of, ‘to,’ eliminated after the any possibility word the defendant saying lawyer, P.D. or attorney, else.” anything
Thereafter, trial, at defendant renewed his objection to the re- tape and cording, additional testimony was elicited outside the presence of the jury. Officer Bohnlein stated that when defendant was asked if he officers, “No,” wished to talk to the he stated but then initially agreed time, Bohnlein, to discuss the matter. At no did according to defendant Defendant, ask talk hand, to to an attorney. on the other testified “No, that his response to Bohnlein’s I want to talk inquiry to a— to a—to Public Defender.” defendant that tes- Subsequently, changed that timony, he to an stating although attempted request “I attorney, sentence, never did finish whatever I my said.”
At the conclusion of the the trial court foregoing hearing, expressly found a reasonable doubt” that defendant was advised of “beyond his waiver knowing intelligent that he made a rights
constitutional of those rights. evidence there was ample testimony,
As indicated the summarized by he initial assertion that Defendant’s ruling. trial to court’s support officers interrogating by was contradicted attorney had an requested from the record The inference plain technician. police and the sound then, in the same with the officers and declined to talk that defendant now do defendant breath, Although his mind and to so. changed agreed in- have once defendant should ceased contends that all interrogation it is inquiry, officer’s response “No” rights by stating voked his his rights prevented “A who has asserted suspect welf settled that thereafter, the option, nonetheless retains further lawful interrogation McClary, (People to initiate a confession.’ voluntarily [Citations.]” case, al- present In the original.) italics in 20 Cal.3d supra, his he rights, invoked Miranda have though may fleetingly without the intervention waive those immediately rights agreed ca- discloses no or the officers. record by urging interrogation Rather, appears the decision talk police. or badgering joling free, we of defendant. Accordingly, have decision voluntary been did not err defendant’s state- admitting conclude the trial court ment into evidence.
4. Victim Curtis Admissibility Photograph of court, erred in phase, that the trial urges during guilt
Defendant Curtis, disclosing mul a color face Mrs. admitting photograph Code section 352 recently bruises. We have said “Evidence *35 tiple the effect of vests the court with broad discretion to weigh prejudicial No abuse of against evidence its value. proffered probative [Citation.] cumulative, was the was not and appears: that discretion photograph . . is seldom malice. ,‘[M]urder relevant evidence the issue highly of á are evidence in such case pictures, pretty, testimony physical 199, (1979) 211 Pierce 24 Cal.3d unpleasant ....”’ v. always (People added; v. see Cruz Cal.Rptr. 91], 595 P.2d italics People [155 605 P.2d Frier Cal.Rptr. 830]; 26 Cal.3d People son, 171.) Cal. 3d at supra, Curtis been with first murder of Mrs. charged
Defendant had degree the alternative the- with was instructed on malice the aforethought; in as Accordingly, murder and murder. premeditated felony ories of Pierce, req- bore on the issue of defendant’s question the photograph Curtis, i.e., uisite state of mind toward Mrs. did he malice? This possess fact distinguishes v. Boyd 589-590 People Cal.App.3d a which also 293], involved the Curtis murder. In case the Boyd, accomplice of defendant was tried under a the- felony-murder ory two color only; of the victim were The photographs introduced. Court of held the Appeal that trial court erred in these admitting pho- tographs because “It cannot be . said. .that the had photographs any intent, of degree on issues such as malice or the relevancy degree since, offense under the prosecution’s theory, was guilty (P. first murder degree 589.) virtue of the by doctrine.” felony-murder view, which Although was admitted is photograph unpleasant we conclude that addition, the trial court did not err in it. In admitting it is noteworthy court held that Boyd error in admitting the foregoing photographs harmless in view of the “overwhelming” evidence of Boyd’s In our view the guilt. evidence of defendant’s guilt the matter before us may characterized. similarly 5. Evidence Admissibility Victim Ott’s Injuries
At the guilt phase, prosecution, outside the presence of jury, offered to prove that officers had discovered a investigating single human hair hair) (possibly pubic on the neck a wine bottle found on the floor near victim Ott’s further offered body. prosecution prove the officers also observed an or abrasion near the vic- injury tim’s private parts. Defendant objected to the proposed testimony (see Code, unduly prejudicial 352) Evid. and the trial court sustained § (The the objection. evidence was introduced at the subsequently phase.)
Thereafter, Breton, Doctor testified that ad- autopsy surgeon, bruises, dition to Mrs. Ott’s various her injuries had been vagina lacerated, torn or and that in his have could been opinion injury Furthermore, caused such as foreign object a bottle. prosecu- McFarland, cellmates, tion elicited from defendant’s Mikles and jail that defendant had boasted of his sexual assault with a bottle on one of *36 the victims.
Defendant contends that the admission of the foregoing testimony because its nature.” To the improper “overwhelming prejudicial of the trial court acted well within its discretion under Evidence contrary, Code section evidence of the hair 352. The court on properly rejected
304 its nature. the in the unduly prejudicial light speculative bottle courts, section, this frequently with broad under Trial vested discretion real or evidence on the ground sustain to demonstrative many objections a defendant unduly prejudice that its or nature gruesome shocking may 843, (1960) in the v. Love 53 Cal.2d eyes jury. (E.g., People (1955) 665, 350 v. 856-857 P.2d Cal.Rptr. 705]; People Cavanaugh [3 252, hand, 44 Cal.2d P.2d On the other testi- 53].) expert 267-268 [282 of a means used to the extent victim’s the mony regarding injuries such v. Jackson inflict held admissible. injuries, generally (People (1971) 504, 919]; 18 507 v. Cal.App.3d Cal.Rptr. Sampo People [95 135, Wharton, (1911) 17 150 1 Criminal 957]; P. see Cal.App. [118 (13th 183, 1972) 344-347.) Evidence Such is often ed. evidence pp. § Pierce, (See malice relevant the issues of and intent. v. People supra, 199, 211.) 24 Cal.3d
Furthermore, of defendant’s defen- testimony cellmates regarding defendant, it was not his dant’s admission was relevant establish that We who committed the sexual assault on victim Ott. accomplice Boyd, conclude that trial court did err in the foregoing admitting evidence.
6. Prosecutorial Misconduct com
Defendant next contends that the prosecutor improperly (See in his behalf. upon mented defendant’s refusal own testify v. 85 S.Ct. U.S. L.Ed.2d Griffin California trial, de The reveals that 1229].) phase record during guilt counsel that defendant was 19 prosecutor stipulate fense asked refused, in the old at his arrest. stating the time of The years prosecutor “I will not I have no information presence stipulate]. the jury [so takes the stand and wishes unless age] [defendant’s “All is no trial court thereafter stated There testify.” right. to so dropped. matter was stipulation forthcoming,” failure of direct or indirect comment upon forbids either Griffin rule, however, ex does not the witness stand. The the defendant to take or on the state of the evidence the failure tend to comments on (Peo call witnesses. logical material evidence or to defense to introduce 509 P.2d Cal.3d Vargas ple falls statement the prosecutor’s need not decide whether 959].) We reference or, is an indirect alternatively, exception, within the foregoing testified, thus is com- had not previously the fact that defendant
305 has denied or refuted personally that defendant parable observing evidence, in position” explain certain or is the “best (See id., facts, all been held to be error. at certain of which have Griffin cited.) and cases 476 that such indi- is, we made explicit Vargas, fact as controlling rect, brief and to defendant’s failure to without testify, mild references an should be drawn whatever that inference of any suggestion guilt therefrom, (Id., held to constitute error. are harmless uniformly that, 478-481.) the basis of the record accordingly We conclude on pp. us, the issue could have had no significant impact before remark at doubt. a reasonable beyond was harmless upon jury 7. Necessity Manslaughter Instructions for
Defendant that the trial court erred argues refusing to instruct the 192). (§ of Our principles voluntary review of manslaughter discloses, however, record herein that there was no substantial evi- dence which led deserving consideration have reasonable might jurors (See to reach verdict voluntary manslaughter. v. Flannel People (1979) 668, 25 84, Cal.3d 684 P.2d Cal.Rptr. 1].) [160
Voluntary defined manslaughter statutorily, unlawful killing human of a malice being upon without a sudden or heat of quarrel pas 192, (§ observed, 1.) sion. subd. we “If As recently killing, even intentional, though is shown to have been committed a heat of pas upon sion sufficient the absence malice is provocation presumed. .. Because the existence of is presumed malice when the [Citation.]. [H] circumstances of a an suggest intent to kill. . killing .provocation and heat of passion (Peo must be affirmatively demonstrated. [Citations.]” 703, Sedeno 10 Cal.3d ple Cal.Rptr. 518 P.2d italics in 913], original.)
“Heat of defined passion” passion has been as “‘such a as would nat- urally aroused in the mind of an person reasonable under ordinarily facts given and circumstances....’” v. Berry (People Cal.3d 556 P.2d from 777], quoting an case.) earlier As for the element “there is no provocation, specific type provocation section 192 and. . .verbal required by provocation (Ibid.) be sufficient. In may we held Berry, example, [Citation.]” that the provocative conduct defendant’s wife which could arouse a *38 306 average disposi- in “a man of and sexual pain rage
passion jealousy, manslaughter. on voluntary instructions require tion” was sufficient to have be- case, may that defendant the record indicates In the present victims his elderly and killed one of attacked brutally come enraged No to scream. began during burglary because she awakened a re- however, conduct by that such predictable case has ever suggested, kind sufficient provocation constitute the victim would sisting (See, v. e.g., People voluntary manslaughter. reduce a murder charge 391, 452 711, P.2d Cal.Rptr. Cal.2d 734-735 Morse 70 [76 Flannel, the evidence which that if in v. 607].) supra, We noted People insubstantial,” the trial is “minimal theory a supports manslaughter 684-685.) (25 Cal.3d at theory. pp. not instruct on that court need that no substantial evidence We that defendant presented conclude sufficient provoca heat of passion he either of his victims a killed conclusion, the further we not resolve tion. Because of this need was instruction manslaughter whether the failure to question give Sedeno, supra, the test announced in People harmless error under 703, Cal.3d 721.
8. Statement Admissibility Accomplice’s trial court erred permitting
Defendant
urges
the accom
to her by
remarks made
concerning
witness Gaines to testify
testified
defendant. Gaines
implicated
which
plice Boyd
assertedly
had
murder and
in the Curtis
effect that
had denied
Boyd
complicity
had “involved”
defendant
of defendant
inquire
why
asked Gaines to
her he knew
told
Boyd
in the
also testified
murder. Gaines
Boyd
this
terminated
point
The court at
who had killed Curtis.
person
on the subject.
further
inquiry
trial as
was not
present
because Boyd
Under defendant’s theory,
cross-examination,
admis-
therefore unavailable for
witness and was
adverse
to confront
right
of his remarks violated defendant’s
sion
(1968) 391 U.S.
(See
States
witnesses.
Bruton v. United
Cal.2d
v. Aranda
1620];
L.Ed.2d
88 S.Ct.
People
and Aranda
The Bruton
265].)
530-531
407 P.2d
during
codefendant’s statements
rules
of a
admissibility
concern the
tried
case,
sepa-
In the
present
conduct of a
trial.
joint
is the
legal principle
a more applicable
from
rately
Boyd. Accordingly,
rule) renders
to the
rule,
(in
of an exception
which
the absence
hearsay
a witness while testifying
inadmissible a statement “made other than by
*39
stat-
the truth of the matter
at the
and that is offered to
hearing
prove
308,
(Evid. Code,
1200;
(1973)
v. Preston
9 Cal.3d
ed.”
see People
§
300,
(1946)
508 P.2d
v. Simmons
300];
313-316
Cal.Rptr.
People
[107
699,
18].)
Cal.2d
P.2d
[172
however,
We find
whether the
it
to determine
unnecessary,
testimony
under some
to the hear-
exception
the witness Gaines was admissible
for,
examined,
say rule
her
closely
testimony regarding Boyd’s
did
statements^ was innocuous and
defendant.
implicate
The evidence of defendant’s involvement
in the Curtis murder was
Gaines,
It
included defendant’s own admissions
overwhelming.
to
Lewis,
Hall,
McFarland,
Debria
Debra
cellmates Mikles and
and the
circumstances,
officers. Under
it is
interrogating
not reasonably
probable that the
would have reached a more favorable verdict but
for the admission of the
from the witness Gaines.
foregoing testimony
error in
it
Accordingly, any
was
harmless.
v.
admitting
clearly
(People
(1956)
818,
Watson
46 Cal.2d
836-837
243];
P.2d
see also Parker
[299
713,
9. Delay Prosecution Witness Disclosing
Defendant asserts that the prosecutor the deliv unduly delayed to ery defense counsel of information regarding probable testimony of defendant’s cellmate Mark Mikles defendant’s admissions concerning to him. The record reflects that Mikles’ name was added to the pros ecutor’s witness list before trial shortly commenced. When defense counsel called, learned that Mikles would be he complained to trial court that he had been given insufficient notice that the witness would In called. the trial response court a brief continuance granted an appointed to assist defense investigator counsel his de preparing fense to addition, Mikles’ In offered testimony. prosecutor to permit counsel to interview Mikles. defense counsel obtained a Finally, full preview Mikles’ testimony a foundational during special hearing (Evid. Code, 402) conducted prior to Mikles’ on the wit appearance § ness stand. or grant denial of continuances for is a mat- discovery purposes
ter within the discretion of peculiarly the trial court v. Duck (People 178, Wong Cal.3d 188-189 555 P.2d Cal.Rptr. from prejudice must demonstrate some resulting and defendant 297]) (1972) 8 Cal.3d v. Laursen the denial of continuance (People case, In the con 1145]). 501 P.2d present 204 to in what manner was and defendant fails indicate granted, tinuance his interests as it protect relief obtained him insufficient to Mikles’ testimony. related
Defendant that the acted prosecutor improperly failing suggests counsel, trial, of all documents or re prior copies furnish to defense we have Although the evidence be offered trial. ports summarizing *40 furnish, that the must sua evidence sponte, any held People favorable (see 169, (1980) 26 175 v. Nation Cal.3d to People [161 299, (1975) 14 1051]; 604 P.2d Cal.3d Cal.Rptr. People Ruthford 399, 261, In re 5 1341]; P.2d Cal.Rptr. Ferguson 525, 487 P.2d we have never re 1234]), Cal.3d evidence, least in disclosure of unfavorable at the quired pretrial that, of a We conclude no proper request absence therefor. accordingly shown, untimely defendant’s contention of or in being present prejudice disclosure untenable. adequate evidentiary Mistrial Hearing
10. Absence from Defendant’s that he was of his deprived Defendant contends improperly at all trial right present personally constitutional and to statutory (See Const., 15; I, Code, 1043.) Cal. art. Pen. proceedings. § §§ focuses, connection, when, in on He this trial after proceeding during admission of Mikles’ defense counsel moved for testimony, cellmate a mistrial because of the nature of prosecutor’s delay disclosing in the Mikles’ as it to defendant’s involvement mur pertained testimony prosecutor Also at this was the whether the point question ders. issue at of Mikles’ destroyed tape recording had or statement. suppressed the court’s The motion for mistrial made in chambers outside the record that defendant was The court noted for presence jury. his waived client’s present expressly defense counsel personally that the Thereupon, prosecutor explained attendance the hearing. evidently inadvertently misplaced, had been tape recording Mikles counsel, Defense matter. underlying he described circumstances prior “honesty credibility,” accept- acknowledging prosecutor’s in the but absence explanation, argued ed the prosecutor’s he had been un- of Mikles’ prior probable testimony, sufficient notice Mikles. impeach able competently
The out that he had included prosecutor responded by pointing Mikles’ name on a witness list furnished to defense counsel be- shortly trial, fore and that it was defense counsel’s own responsibility ascertain the witness’ and to it. probable testimony prepare impeach The also observed that Mikles’ criminal record ade- prosecutor prior addition, served to that witness. In both of the officers quately impeach who interviewed Mikles had been available for interview originally defense counsel. court, mistrial,
The trial defendant’s motion for ruled that denying because defense trial” the likeli- counsel had notice “early hood that Mikles it was counsel’s would testify, responsibility that witness. perform any work investigative necessary impeaching The court further accepted prosecutor’s explanation regarding missing tape recording.
Defendant now contends that it was reversible error to hold the mis- trial outside his lacks merit. Section hearing presence. point *41 (b), subdivision in in cases “the ac- provides pertinent part felony cused must be present at the at the time of arraignment, plea, during the preliminary those of the trial when evi- hearing, during portions fact, dence is taken before the trier of and at the time of the imposition of sentence. The accused shall be at all other personally present pro- shall, court, court, unless ceedings he with leave of execute in a open Furthermore, 1043, (a), written waiver. ...” section subdivision recites section, in as otherwise the part “Except this defendant provided in a case shall be at felony the trial.” personally present
The cases which have the sections interpreted foregoing uniformly have either that the accused is not entitled to be personally present held in chambers or at bench discussions which occur outside of jury’s presence on of law or other matters in which defendant’s questions pres ence does not bear substantial relation to fullness of “‘reasonably (In (1965) his to defend re Lessard 62 opportunity against charge.’” 497, 583, Cal.2d 506 accord In re Dennis Cal.Rptr. 39]; 399 P.2d [42 666, (1959) (1956) 51 47 657]; Cal.2d 672 P.2d v. Abbott People [335 362, (1947) 879, Cal.2d 372 v. 30 Cal.2d 730]; P.2d People Isby [303 (1970) 756, 894 P.2d see v. House 12 405]; Cal.App.3d People [186 (1969) 270 Cal.App.2d 766-767 v. Boehm Cal.Rptr. 831]; People [90 13, 19-20 163 Cal. 590]; Teitelbaum People [75 Wharton, 3 Criminal Procedure App.2d 157]; 207 P.2d see (12th 1975) 342-345.) ed. in another Stated pp. way, § “[W]hen
310 useful, will be of to him and his of the defendant or benefit presence counsel, of his a denial of due process lack of becomes presence Boehm, (Dennis, 673; Cal. supra, 51 at see 270 supra, p. law.” Cal.2d Teitelbaum, 19-20; 207.) at pp. Cal.App.2d p. at supra, App.2d burden that his absence upon preju The demonstrate sard, (In re Les diced his case or denied him a fair and trial. impartial House, 506-507; at supra, pp. 62 Cal.2d at supra, Cal.App.3d 767; v. Williams 745, 752 Cal. People p. Cal.App.3d Boehm, 20.) supra, at 364]; Cal.App.2d p. Rptr. Boehm, Teitelbaum, supra, supra,
Both illustrate application of The Boehm court held that defendant’s foregoing principles. presence not at an in-chambers discussion required culminating codefendant; of grant immunity and dismissal of charges against Teitelbaum, the court ruled that defendant was not to be entitled present at of 34 chambers or bench discussions personally any separate Teitelbaum court observed that presence. held outside the jury’s chambers, “In none of the instances of conferences at the or in bench were matters to the court as to which could any presented appellant his counsel. Each them concerned been of aid to have questions of law as to the evidence and any knowledge admissibility appellant have, have had which his did have facts counsel would may of no aid to his counsel in the these questions been presentation (163 added.) Cal.App.2d law.” italics *42 Teitelbaum, case, the at issue concerned hearing In the in present evidence, of of specifically, a law admission question regarding Mikles’ a reason of admission of ordering by of mistrial necessity been in at issue had testimony already placed Because testimony. sub- in it is difficult conceive presence, any evidence defendant’s been of continued would have presence reason defendant’s why stantial coun- Appellate his the mistrial motion. presenting aid to counsel he at the hearing, defendant been present had speculates sel now for in han- incompetence his counsel have discharge moved might observed, however, counsel- we hereinabove the matter. As have dling defen- and investigating presenting competence with reasonable acted dant’s case. at the mistrial hearing defendant’s presence
We conclude that interests, a to assure him defendant’s in order required protect not the case. trial, in the defense of assist counsel or to impartial fair did court not err in defen- Accordingly, conducting hearing dant’s absence.
11. Witness’ Prior Federal Admissibility Conviction
Defendant contends that the trial court erred in for excluding a impeachment purposes prior 1975 conviction of Mikles in a robbery federal youthful offender The basis for the trial proceeding. court’s rul was that under California law a ing court juvenile adjudication (Welf. Code, 203; considered an conviction. & impeaching Inst. see § In re B. Ricky Cal.App.3d Cal.Rptr. 828].) law, Defendant that under federal a urges prior juvenile adjudication be admissible may purposes a witness’ if attacking credibility conviction of that offense an adult would be by admissible and similarly the court is satisfied that admission thereof “is for a fair de- necessary (Fed. Evid., termination of the issue guilt or innocence.” Rules rule 609(d).) determine, however,
We need not of the federal rule applicability to a state court for it is from the proceeding, readily apparent record that defendant was not in his ef- substantially impeded impeachment forts by trial court challenged Defendant was ruling. permitted disclose to the the fact that Mikles had suffered 1977 robbery court, conviction in state of, and further that he had been convicted on, was awaiting sentence additional counts. robbery Quite clearly, four proof of the federal would have added adjudication nothing significant to the force of the impeachment evidence Mikles which against already had been adduced defendant.
12. Witnesses’ Former Admissibility Testimony
Defendant the trial argues court erred in admitting preliminary hearing of two witnesses testimony (Larry Rushing *43 Lewis) Debria who were unavailable defendant, at trial. According the prosecutor failed to exercise reasonable in diligence procuring trial attendance of these witnesses. law,
Under if, California prior be introduced testimony may among (Evid. Code, other the declarant things, unavailable as a witness. 1291.) be established Unavailability may by that the declar- showing § ant is “Absent from the and the of his hearing proponent statement has
312 his atten but has been unable diligence procure reasonable exercised (Id., 240, (a)(5).) subd. process.” dance the court’s by § of due “is a strin diligence It has been that the requirement stated that reasonable It is not sufficient for gent prosecution. one in effort to a defendant’s procure [sz'c, been exercised an diligence has A criminal defendant’s process.’ the court’s ‘by attendance witness’] that require is deemed to right prosecution witness-confrontation and reasonable dili the additional of a faith effort showing good make v. Salas voluntary (People attendance.” the witness’ procure gence 460, in (1976) 871], italics Cal.Rptr. 58 469-470 Cal.App.3d [129 749, (1974) 755 v. Johnson 39 Cal.App.3d People see original; [114 545].) Cal.Rptr. v. 19 Cal.3d issue (People Enriquez
In a recent review the 171, we observed P.2d 261]), example, Cal.Rptr. of a witness that sole effort to attendance prosecutor’s procure and, at some undisclosed “was to issuance of a bench warrant request (19 be located.” time, might mother where he to ask the absent witness’ the war 236.) in to serve Enriquez No was made attempt Cal.3d to the on information available rant or to locate the witness based indif disclosed casual “only We concluded the record prosecutor. ference, on in to serve the warrant attempting not diligence, [witness] (Id., 236-237.) Prieto.” at pp. case, contrast, evidence in the record
In the there is present ample diligence. due prosecution’s court’s supporting finding trial two wit- these sought The and their police investigators actively officers relatives, with jails, checking nesses friends and by interviewing officers, messages. leaving hospitals probation appropriate found expressly trial issue testimony court heard extensive was characterized (Rushing witnesses of these given “lifestyle” and the prostitute), was assertedly as a from Lewis “fugitive justice,” them, the exer- prosecutor to find evident difficulties incurred trying due under the circumstances. cised diligence is a factual due diligence
As we noted in Enriquez, recently circum according the trial court to be determined question will case; ruling the trial under familiar rules stances each court’s 235; (19 at p. Cal.3d appears. be disturbed unless an abuse discretion Williams Cal.3d see also People herein. appears
506 P.2d No such abuse 998].)
313 Moreover, were we to hold that the failed to prosecutor even exercise due in the former of diligence, any admitting testimony error witnesses and Lewis would be harmless Rushing reasonable beyond (see (1967) 18, 24 Chapman doubt v. 386 U.S. L.Ed.2d [17 California re 710-711, In 705, 824, 87 24 Montgomery 1065]; S.Ct. A.L.R.3d 863, (1970) 695, 2 Cal.3d Cal.Rptr. 15]), P.2d because [87 neither witness noncumulative provided significant, testimony. Rushing an testified that defendant had admitted merely hitting lady elderly the course Lewis one during of was of several witnesses burglary; Hall, Mikles, (Gaines, McFarland) in whom defendant confided regard Indeed, noted, in the ing his role murders. as we have own defendant’s tape-recorded statement established his firmly these complicity crimes.
13. Exclusion Jurors Prospective the voir dire examination of the court
During trial excused jury four who stated prospective jurors had that would they automatically vote against of the death imposition without penalty regard to (See v. Illinois evidence in the Witherspoon case. U.S. 776, 785, fn. 21 L.Ed.2d 88 S.Ct. 1770].) pro- One these
spective jurors stated that affirmatively his feelings regarding the death would not affect his penalty ability determine defendant’s in- guilt or nocence. Defendant evidently that the views of acknowledges freely these prospective jurors regarding death penalty disqualified them from rule, the issue of Witherspoon determining under our examination independent of the voir dire discloses proceedings indeed each of these was excluded persons properly under Witherspoon. contend, however, Defendant does jurors exclusion these resulted in a guilt which adjudicating unrepresentative the commu- nity and unduly biased favor of conviction. Identical contentions were raised and rejected us Hovey Superior Court very recently ante, page 616 P.2d 1301], and accord- need not ingly be reexamined here.
14. Waiver Right Present Evidence Mitigating
Defendant asserts that the of death must be set judgment aside of the by reason of the trial court failure to obtain his personal waiver right present evidence at the mitigating penalty phase of trial. Defendant the position takes that his trial counsel’s submission of the penalty question to the jury without offering any mitigating
314
death was the proper pen-
a concession that
tantamount
to
evidence was
relies,
on
which require
cases
by analogy,
in this case. Defendant
alty
his various trial
on
rights
defendant of
by
and
waiver
specific
personal
which
of a case on a transcript
a
or submission
guilty plea
entry
(1969)
238
(See
v.
395 U.S.
Alabama
acquittal.
Boykin
would preclude
274,
(1973) v.
Cal.3d
1709]; People
Levey
L.Ed.2d
89 S.Ct.
[23
516,
(1969)
re
The contention lacks no an waiver of the to right present on-the-record thority requiring nearly at trial. We a identical phase rejected evidence a penalty (1972) 349, in 8 Cal.3d 365-366 Murphy v. argument People [105 138, pau- 503 P.2d where defendant contended that the Cal.Rptr. 594], in his at and guilt penalty phases of witnesses called defense both city all, re- was a guilty plea constituted no defense at and tantamount to As to a waiver under we noted Boykin-Tahl. court obtain quiring waiver have no in trial sit- principles application on-the-record Murphy, be to advise a defendant of expected uations where defense counsel may his and call witnesses. rights testify
We have discussed defendant’s related con- rejected and previously inadequate incompetent failing tention that his trial counsel was at the For penalty phase. purposes evidence present mitigating contention, case it clear that counsel’s submission of the present seems without evidence on the cannot olfdring mitigating penalty question was the death penalty viewed tantamount concession attempted Trial counsel in dissuade proper. argument length Counsel’s lack of success penalty. from death jury imposition the effort was vigorous does not alter our conclusion that application Moreover, in the statutory in concept. nothing pertinent reasonable or in the instructions which were here provisions given suggests in the defendant failed to offer required death event (See 190.3.) Accordingly, forego- evidence. former any mitigating § nor relied are neither analogous authorities ing controlling. re- make decisions
Defense counsel authorized to tactical generally proceedings, of evidence to control court introduction garding from the cli- obtaining without the first waiver necessity personal (See v. Linsk 70 Cal.2d 276-278 ent. Linsk Cal.2d 114-115 449 P.2d Hill 760]; People *46 429 P.2d It is 586].) that defendant noteworthy person- raised no ally whatever to objection counsel’s submission of the case evidence, without introducing mitigating and further that defendant presently does not call our attention to evidence any specific mitigating which was withheld from the consideration. We conclude that de- jury’s fendant’s personal waiver was not under the circumstances in required this case.
15. Constitutionality Death Penalty Legislation
Defendant asserts that the 1977 death law under which he was sentenced is unconstitutional. Most of the advanced arguments Frierson, defendant were discussed at considerable in v. length People supra, 172-188, 191-195, Cal.3d and we do not them repeat here. The bases for (1) the claimed include: the breadth of invalidity the jury’s discretion fix the appropriate the absence of a penalty; requirement decision; the render jury its findings explaining (3) the absence of any express statutory provisions requiring proportion- review on ality appeal. addition,
In defendant contends that the 1977 law is constitu tionally in inadequate the existence failing require of at least one aggravating circumstance in order to a verdict of As justify death. ex Frierson, however, in plained the 1977 law requires the of at presence least one “special circumstance” which is an feature aggravating setting the case (See from an apart id., “ordinary” murder case. at 175- pp. 179.) Further, the is instructed to consider and to be guided by list of specific aggravating circumstances in its mitigating reaching decision, a provision equivalent to a requirement jury weigh {id., Thus, those 180). factors nature of the offense aggravated is considered and its weighed by jury making determination. event,
In any
the record in the present case discloses several aggra-
circumstances
vating
murders,
connected with the two savage
including
the use of lethal and
brutal force
unusually
two
and el-
against
helpless
ladies, and the
derly
vicious sexual abuse of one of them. We observe
that defendant has not contended that
of the
imposition
death penalty
would constitute “disproportionate” punishment under the facts of this
(See id.,
case.
180-184.) Indeed,
at pp.
given
circum-
aggravating
above,
stances referred to
such a contention would have been frivolous.
Bird
Mosk
hold
The dissents of Chief Justice
and Justice
would
dis-
various
most of which were
grounds,
1977 law unconstitutional on
Frierson,
that the
cussed
but we
The dissents
respond briefly.
suggest
sentencing
law fails to
standards to
provide adequate
guide
discretion
trier of
This issue was treated at
176-178
pages
fact.
Frierson,
we
resemblance
the Califor-
where
focused
close
upon
were
nia
Florida
which
Georgia
upheld by
statute to
laws
It is that section 190.3 of suggested specifying be the by the various factors to considered aggravating mitigating fact, are trier of is invalid in its failure to which factors expressly state which are Yet the factors involved aggravating, mitigating ones. (such crime, conduct, of criminal prior the nature the defendant’s the or or capac victim’s consent defendant’s mental participation, age the circumstances require the concentrate ity) properly jury upon offender, ex both the offense and the rather upon than surrounding traneous the of having factors no rational on bearing appropriateness We believe the nature of that or penalty. aggravating mitigating these be any person various factors should self-evident reasonable within the of particular context each case.
The Bird dissent whether defendant’s diminished questions further 190.3, is a (§ mental or intoxication subd. capacity (g)) due to disease We dimin or factor. think it obvious that mitigating aggravating quite Indeed, is this factor. this factor ished capacity type mitigating as a factor the drafters of the Model listed specifically mitigating standards; Penal the Califor sentencing Code provision significantly, in the act have most of the factors set forth nia seems to incorporated ap which referred to with obvious Model Penal Code provision, (See v. 428 U.S. Gregg Georgia, supra, proval by high court. 193-194, 2909].) 96 S.Ct. fn. L.Ed.2d of any the absence in the California act complain dissents which aggra- file written requirement findings disclosing jury factors, in death upon imposing penalty. if were relied vating any, 178-180, (1) the Gregg Frierson at pages As was fully explained no such standards regarding et decisions Georgia impose rigid al. event, suffi- California bears system necessity findings; upheld advisory to Florida’s jury system cient similarity Proffitt (wherein if is valid pass constitutional muster. Florida’s Surely, system recommendations, an makes advisory without to the trial findings, which the additional imposes California’s judge), system, safeguard must likewise be valid. jury independently determining penalty, Moreover, unlike the system, imposes Florida California additional the trier of fact make a written of the exis- requirement finding (which tence are circum- “special” “aggravating” circumstances stances) 190.4, (a).) (§ before the death subd. penalty may imposed.
The issue of review was treated in detail proportionality at pages 180-184 of Frierson. The Bird dissent revives the that be- argument cause the California Legislature rejected proposed legislation to add law, review to the 1977 we should not proportionality “read into” that law similar provisions in order to its preserve But as constitutionality. 183-184), Frierson explains well (pp. Legislature have may rejected *48 such proposals of the wholly unnecessary light decisions Proffitt (1976) and 929, Jurek v. Texas 428 262 U.S. L.Ed.2d 96 S.Ct. [49 2950], which preceded 1977 law and which had upheld Florida and Texas statutes no whatever containing express provision for proportion- review. ality
It is also suggested form of review which proportionality (based Frierson assures will be available upon test of three-pronged (1972) 410, 217, In re 8 Cal.3d 424-427 Lynch 503 P.2d Cal.Rptr. [105 921]) is too narrow because it fails to determine whether the is penalty proportional to other sentences for similar imposed crimes. This state- Frierson's, ment, however, appears ignore express reference to the test, second and third of the under which prongs Lynch a comparable Frierson, (See 142, is to be inquiry made. People supra, Cal.3d 183.) event, In any 183-184), as indicated in Frierson we (pp. stand ful- ly prepared to afford whatever kind of review be proportionality may held mandated constitutionally court. by high law,
The 1977 death as with all is legislation, presumed (In 613, constitutional re Anderson 69 Cal.2d Cal.Rptr. 21, it 447 P.2d does not and unmistak 117]), “clearly, positively to violate the and Fourteenth Amendments as ably” appear Eighth (see the federal cases In re Dennis M. 70 Cal.2d construed 296]). 450 P.2d
Conclusion trial contentions asserted regarding Defendant has raised numerous However, review of the our inadequacies. trial counsel court errors and verdict would have resulted that no more favorable record convinces us re- not occurred. Defendant inadequacies had such asserted errors or as we are the extreme gravity ceived a fair trial. Mindful of convicted and of ultimate punish- crimes for which defendant stands overwhelming in view of the ment which has been imposed, each of the offenses evidence of defendant’s of guilt uncontradicted permit circumstances which presence and of the charged, special no “miscarriage the death we conclude that imposition penalty, VI, within the of article section meaning has occurred justice” the California Constitution. affirmed, relief is corpus and the for habeas judgment petition
denied. Manuel,
Clark, J., J., and concurred. I NEWMAN, J., More thana in Justice year ago joined Concurring. (25 142, 188-196.) Yet in the case Mosk’s Cal.3d now Frierson opinion. V I nor his dis- us am neither II to IV persuaded by parts part before who that the statute is sent. Instead I concur with hold my colleagues *49 must be constitutional and of death therefore judgment affirmed. I col- explain will I do not subscribe
Very briefly fully why believe, lead I answers league’s opinion, credibly views. The been the Chief questions specified by of counsel that have adequacy Mosk, con- Justice and the Chief objections Justice Justice’s As to death cerning constitutionality proportionality. penalty I I in Frierson. do general, still share views Justice Mosk expressed by not, however, us to require with his conclusion that four defects agree hold the statute unconstitutional. death- we who draft
How much should demand of the individuals to the United response and conscientious statutes? A reasonable penalty I is I think. Since am Supreme enough, persuaded States Court rulings the stat- to uphold that the California so I vote Legislature respond, did. Frierson, (see ute. rulings supra, There well be revision of those may 190-195), pre- indeed to at “a court would be rash Cal.3d but state pp. diet how and when the States will United Court Supreme ultimately {Id., solve 195.) it created in Furman.” at problem p.
If the does decide to certain Supreme prescribe procedures, Court how our to cases like this be affected? Should we might approach pro nounce that of the new is prescriptions legislative acknowledgment (as essential and seems that all Justice Mosk to suggest) “elementary must in a requirements” be articulated rewritten statute? As recently last month we stated: “If feasible within bounds set their words and by statutes should be construed to their purpose, preserve constitutionality. (1980) ante, p. 161 at (Conservatorship [Citations.]” of Hofferber p. 616 P.2d 836].) California courts and federal courts are not timid in into reading leg- islation various and other rules deemed procedural constitutionally required draftsmen have overlooked or may That rejected. true as to countless
demonstrably requirements on matters such as verdict, doubt, unanimous proof beyond reasonable or judge (cf. Whether findings. there be four such matters or Hofferber, forty Frierson, 178-179; at supra, pp. 8) fn. we supra, should not insist, cases, even in death that each first writ- requirement be ten out and then enacted Legislature.
MOSK, J., Dissenting. view a fair In my of the record reading demon strates that defendant was denied constitutionally adequate assistance of counsel at trial, of his penalty phase and hence that the judgment of death on him imposed cannot stand.
I It is now settled that the constitutional of a criminal defendant right to the (U.S. “assistance Const., Amend.; of counsel” Const., 6th Cal. *50 I, 15) art. that requires he be afforded reasonably competent repre § sentation an by as his attorney acting conscientious diligent, advocate. (1979) 412, v. (People 23 Cal.3d Pope 423 (maj. opn.), 438 Cal. [152 732, Rptr. (dis. Mosk, 590 P.2d J.); accord, of opn. v. People 859] (1979) 142, Frierson 25 281, Cal.3d 160 599 P.2d [158 587] Richardson, (opn. J., Clark, J., of Manuel, J.); and v. People Cooper 672, 94 681 Cal.App.3d Cal.Rptr. 646]; People Farley 851, Cal.App.3d Cal.Rptr. 695].) “Reviewing courts should avoid counsel’s second-guessing informed choice among alternatives, tactical but a defense attorney’s freedom to make such de- a criminal offense accused of person without limits. Every cisions is not That assistance. legal constitutionally adequate is entitled to [Citation.] which decision a critical tactical if counsel makes is denied trial right in criminal lawyers ordinarily prudent be made diligent, would not by of ignorance not made from if the decision were This is true even cases. 424.) at p. the a fact.” Cal.3d law or (Pope, in perform the “basic duties” counsel must order to Among provide of competent assistance are the client’s reasonably diligent preparation case a careful of defenses law and all of fact and that investigation may (Id. 424-425.) be at If counsel’s these available. failure pp. discharge results in withdrawal crucial duties the of a or meritorious potentially defense, (Id. the defendant has been denied his constitutional at right. 425.) however, Absolute not p. certainty, is “A crucial defense required: which, is if one result in a necessarily presented, ‘would inexorably (Id. 425, 15.) acquittal.’” p. defendant’s fn. course,
In trial, this to the of murder phase rule a of applying penalty it is in the the word “defenses” sense which inappropriate speak it is used in the once is found the defendant committed guilt phase: crime, is the there a him to which longer “charge” against no pending Rather, he “defense.” the is in essence a interpose phase may which additional information about defendant sentencing hearing at adduced, concerning in order to rational decision permit proper end, to be To this the trial punishment imposed. governing statute on the evi- proceedings question penalty, herein that “In provided both as to presented dence and may by people defendant sentence,” relevant including, matter and aggravation, mitigation, to, but facts as the of- not limited such the nature circumstances of fense, lack of prior by the existence or criminal activity character, force, the use threat and “the defendant’s or involving (Italics mental condition condition.” background, history, physical (Former Code, 190.3, added.) eh. par., Pen. 1st added Stats. by § intro- 1258.) broad scope right defendant’s § provision duce is underscored the further evidence mitigation its shall take into account not certain only decision reaching state, mental (e.g., par- listed factors the defendant’s age, degree offense) which in the but also other circumstance ticipation “Any it is not a excuse though extenuates the crime even *51 gravity legal (Id., par., the crime.” 5th subd. (j).)
321 The crucial of such importance evidence is mitigating demonstrated by the fact for its statutory provisions introduction are not matters of merely are legislative com policy—they constitutionally pelled: and Fourteenth Eighth Amendments require sentencer “not be precluded from as a considering mitigating factor, any aspect of a defendant’s character or record and of the circum stances of the offense that the defendant as a proffers basis for a (Fn. sentence less than omitted.) (Lockett death.” (1978) v. Ohio 438 586, U.S. 973, 990, 604 L.Ed.2d 98 S.Ct. (plur. opn. [57 2954] J.).) C. Burger, There are First, two reasons for this rule. because of the drastic nature of the it penalty is critical that the author sentencing full, accurate, have ity and reliable information about the to be person punished: “the of death is different qualitatively from a sen tence of imprisonment, Death, however long. its finality, differs more from life imprisonment than a 100-year prison term differs from one of a only year or two. difference, Because of that qualitative there is a cor responding difference in the need for in the reliability determination omitted.) that death is the appropriate (Fn. punishment case.” specific (Wo (1976) v. North 280, Carolina 428 U.S. 305 L.Ed. odson [49 944, 961, 2d 96 S.Ct. (plur. Stewart, J., Powell, opn. J., 2978] Stevens, J.).) In a case noncapital “where discretion is sentencing grant ed, it has been generally that the agreed sentencing judge’s ‘possession of the fullest information possible concerning defendant’s life and characteristics’ is ‘[h]ighly selection essential—[to the] relevant—if of an appropriate (Lockett, sentence. . . .’” 438 U.S. at pp. 602-603 [57 L.Ed.2d at p. 988].) Yet “If experienced trial who judge, an faces daily the difficult task of imposingsentences, has a vital need for accurate in formation about a defendant' and the crime he committed in order to be able to impose rational case, sentence in the typical criminal then ac curate sentencing is an to a indispensable prerequisite information reasoned determination whether a shall live or die aby people who never before have may made a sentencing decision.” (Italics added.) (Gregg (1976) 153, 428 Georgia U.S. 190 L.Ed. [49 859, 884, 2d 96 J., S.Ct. Stewart, Powell, J., (plur. opn. of 2909] Stevens, J.).) and even
Secondly, more “The basic fundamentally, concept underly ing the Eighth Amendment less than the nothing of man.” dignity 86, 630, v. Dulles (Trop 356 U.S. L.Ed.2d 78 S.Ct. Warren, (plur. J.); accord, opn. C. v. Anderson People 590] Cal.3d 880].) impose P.2d To a sen-
322 character, death “the defendant’s background, tence of in of ignorance that and treat the defendant as some- history” deny dignity is to [and] less than human “A that accords no process significance thing being: and record of the individual offender relevant facets character or of offense excludes from consider- the circumstances the particular in the of fixing possibility ation the ultimate of death punishment the frailties or factors from diverse compassionate mitigating stemming of all of a not designated humankind. It treats convicted offense persons faceless, individual but as members of a un- uniquely beings, human blind of penalty differentiated mass to the infliction the subjected (Woodson, It 428 at at p. p. 961].) death.” U.S. 304 L.Ed.2d [49 that “in un- follows cases the fundamental capital respect humanity Amendment, the consideration of derlying [citation], requires Eighth the character and record of the individual offender and the circum- the stances of as a particular constitutionally offense indispensable added; (Italics the the death.” part process inflicting penalty Lockett, ibid.) (Accord, at 990]; 438 U.S. L.Ed.2d at p. p. Rockwell Court Cal.3d Superior 1101].) 556 P.2d It in be unable to give is self-evident that most trials will jury the as whatever to such factors without mitigating “consideration” investi timely sistance of defense counsel. Unless counsel undertakes evidence, or this marshals the v/itnesses documents gation to develop it, phase, it at the present needed to introduces the individualized treatment the defendant without risks condemning and, and its mandat progeny, the statute under contemplated Gregg by reason, duty ed For this defense counsel’s basic the Constitution. defenses his case and all carefully investigate client’s diligently prepare includes, Cal.3d) 424-425 of 23 pp. be available may (Pope, cases, he to so If fails responsibilities. additional capital foregoing evi act, extenuating crucial withholding if the failure results had representation has not from jury, dence rule. As Pope, entitled under Pope which he is constitutionally the evidence in course, prove question defendant need (Id. at than death. a sentence less produced have would “inexorably” 15.) fn. II record, at bar I find that the when fair- this rule to case Applying read, con- the defendant’s contention that he denied ly supports at the representation penalty phase. stitutionally adequate *53 with, To it is that counsel had more begin beyond dispute than ample timé to for that of the prepare phase Despite the proceedings. strong (U.S. public favor of a trial in all criminal cases policy speedy Const., Amend.; Const., I, 15; Code, 1050; 686, 6th Cal. art. Pen. § §§ 557, 431, v. Johnson 26 Cal.3d 562-563 People 606 P.2d and the 738]), mandate that in the implementing statutory absence of good cause or consent a defendant with charged must felony to trial within 60 after brought the of the information days filing (Pen. Code, 1382, 2), subd. in the case at bar the trial did not begin § until 415 after the first days information was filed. all that During time defendant was held in the local and for the last 365 jail, days pe riod he was of whom represented by attorney he now complains.1 selection,
After seven days jury People put on a substantial case in chief at the guilt phase: prosecution called wit- twenty-nine nesses, and their testimony consumed some of trial.2 eight days By contrast, defense counsel offered no evidence whatever on defendant’s behalf.
In even greater contrast was the testimonial portion of the penalty phase, 9, held on 1979. While January portion of the corresponding guilt week, lasted phase more than a the entire hearing testimony the issue of penalty took less than 45 minutes: two prosecution witnesses were questioned about the briefly location and appearance of the bottle used apparently Ott; assault the victim sexually defense counsel cross-examined other; one but and counsel again declined to of- fer any evidence whatever on defendant’s behalf.
Counsel’s evidence, failure to present moreover, was extenuating called repeatedly to the First, attention in jury’s oral argument. 7, August September September 1The crimes were committed on 29 and 1977. On police immediately jailed. 17 defendant surrendered to the and was On October 19 the filed, charging obtaining first information was tinuances, him with both murders. After 12 con public private attorney appointed defender declared a conflict and a 8,
as defendant’s counsel on December 1977. After at least 20 more continuances—one lasting attorney’s request—jury months and most ordered at the second defense 3-1/2 Indeed, finally began year between exactly selection one later on December 1978. (Mar. 1979) judgment jail the arrest and the defendant was held a total years. and one-half one 19, 1978, 2The prosecution opening made its statement on December and its wit 20, 21, 26, 27, 28, 29, 1978, nesses testified on December January 2 and 1979. list of his on the aggravating structured prosecutor presentation into take account that the statute directed factors mitigating 190.3.) (Former Code, each of Reviewing Pen. fixing penalty. § his factors, except age those he found none favorable to others, crime; circum- he constituted urged, the time of the all the “Is anything asked the there jury, stances He then in aggravation.3 *54 of evi- offering of and the testimony have heard the you during days crime, the the in diminished the of any gravity dence to that you way Again not.” paraphrasing of Mrs. Ott? beating Anything? Obviously “Then told the we the next language, prosecutor jury: the statutory character, is the defendant’s come down the last and that [factor], to Well, we his his his mental and condition. background, physical history, know, we do I don’t know too much the do we? But what defendant, make a would submit to is sufficient for to determination of you you, (Italics man, added.) The prosecu- the character of this Mr. Jackson.” factors, physical of those defendant’s evident tor addressed two stressing the showed his circumstances of crime strength and that the arguing cool, vicious, killer. Sum- pitiless “mental to be that of a condition” what about the then “So ming up prosecutor emphasized, the point, character, his his mental and history, phys- defendant’s his background, in that Obviously ical condition? factors of Any mitigation regards? none.” turn,
In on defense counsel’s inconsistent this argument wholly he to the to topic. made consider Although frequent appeals jury from,” “where this man is that ex- coming apparently he realized young as to he had evidence cept produced affirmative age character, defendant’s or the prosecutor, like background history—and admitted, he of that omission. Thus he persisted reminding jury never a chance to know or see him or talk “you got really [defendant] him,” trial “we during and could that heard only argue negatively I was to when I was his age... about the that... used nothing things “to like some counsel defense type security.” Again, urged Now, you into the individual. fair. . .we must look background Well, I don’t much I don’t know much about him. know about say, him. All I see is this black—black man over here. looks young.” He (Italics Indeed, to this tech- added.) counsel adhered doggedly defense even motion for modification his automatic nique arguing Ott, victim disparity age wide between defendant and the 3Because of the aggravating argued youth even was an prosecutor eventually defendant’s circumstance. (former Code, 190.4, (e)): verdict Pen. subd. while the court pressing § from,” is coming to consider “where he counsel acknowledged pros- adverse evidence defendant’s character ecution’s on could only as, Court will remark that “the never know this individual elliptically ”4 I know the individual.. .. say, on ignorance of the court and these matters was of jury counsel’s I, ante) own For reasons above it was making. explained (part .coun- sel’s his evidence on the issue of defendant’s duty present background rather than the court and history, asking rely on his jury blindly allusions to “where this man is unexplained young from.” coming required Nor are we on what such speculate evidence have in- might cluded: record contains material this significant issue that counsel could have before the put witnesses. appropriate
The most the obvious is factual information in appearing proba- the tion report—information elicited the officer by probation from sources that were equally accessible to counsel. to that According defen- report, Arkansas, dant was born in in the child of Alfred Jackson only and Hollie Walker. When he was four years old his parents separated and his mother took him to California. She subsequently began living with a Mr. him, Hackworth and had a child now with by residing her at an unknown location. Defendant was raised paternal his primarily by Jackson, grandmother, Mattie with in her the staying Long Beach area until he was 17. He was then sent father, to Oakland to live with his who was unemployed and subsisted on welfare and disability payments.
At least one relevant picture defendant’s and background history appeared when the officer probation interviewed grand- defendant’s mother, Mrs. Jackson. the According probation report, the latter “states that she raised defendant his because mother did not want him. When defendant was nine he lived with his mother and stepfather for a while and the latter beat him when did not do he what was to do and when supposed beat him he did he what was not supposed to do. Mrs. Jackson also believes that witnesses lied about defendant’s part in crimes, the her particularly Debra Hall. granddaughter, Mrs. Jack- son describes defendant as a being kid who good came down here in word, 4Taking defense counsel his the court found no extenuating additional cir cumstances and denied the weighing motion. court noted in that the matter it “considered only and evaluated such evidence as presented was the jury,” and con factor, cluded “There is on this one mitigating record but is that the defendant’s age.” of- up, probation she was sick.” Summing care for her when 1977 to case that “Defendant was his own evaluation ficer states in he until supervision a there was no adult male reared in home where then sub- He was both by parents was nine years age. rejected he stepfather whom to indiscriminate physical punishment jected knew.” scarcely information, however, was communicated to jury.
None of this de- her support knew Mrs. Jackson and counsel well Yet defense First, dire the voir during proceedings the trial. fendant throughout counsel, held brief prosecutor defense phase, judge, guilt Mrs. that Jack- complaint latter’s regarding discussion chambers courtroom, when son, jurors they to the sitting spoke who was concern about expressed The prosecutor her on aisle. passed contacts, intended to if defense counsel of such propriety particularly stated that in the Defense counsel penalty phase. call her as a witness opinion “very old and his Jackson was about years Mrs. senile”; with jurors. warn her against talking nevertheless he offered to “I Whether would that she responded, agree elderly. The prosecutor it but be as may, not—I don’t that get impression, she is senile or a witness in of the trial?” any phase intend to call her as does counsel he her did know but that call replied might he yet, Counsel *56 I everything for and I have to use ‘“cause I don’t have much me going Mrs. he reluctant to exclude very have The that was judge agreed got.” courtroom, the remark that “in from the the adding poignant Jackson himself, finds is only ally now his world in which defendant strange black,...” white, is and his who grandmother, his who is lawyer, that told him she was Mrs. Jackson prosecutor explained then his she seemed to answer ques- hello to the and that just saying jurors, not it for this that he believed she was tions reason responsively; said, view “I moderated his and senile. Defense counsel subsequently a He readily a little I think she is little senile.” have talked to her bit. however, defendant’s admitted, she personal knowledge that had he doesn’t really “She raised the and... history: boy background her,...” than And counsel have checked that out—other anybody—I her com- supported that Jackson acknowledged strongly grandson: Mrs. defendant’s reason with her” on the question that can’t menting “you boy want anything happen he concluded: “She doesn’t guilt, thinks the boy knows it is the death she penalty and she innocent,...” at the end of trial and in the course of his for
Again, argument verdict, counsel that “At no time have modification of the told court father,5 I heard and “the ever from” either defendant’s mother or only I one that have ever heard from or has ever interest is his given any always who has been in side, faithfully on his father’s grandmother (Italics added.) court” the trial This proceedings. observation during Johnson, pointed was corroborated witness who out by prosecution in the his sitting Mrs. Jackson courtroom cross-examination. In- during deed, Mr. he a Johnson’s own that too was testimony suggests potential witness for the penalty phase. defendant at He testified he had known defendant for at least four or five years, which time he during saw him about when once week defendant visited the teenage boys of the woman with whom Johnson was that defendant was living; “wel- house; comed” in the woman’s and that Johnson persuaded surrender to the police because he was “worried about his safety.” addition,
In filed declarations support defendant’s petition for habeas contain evidence of corpus counsel’s failure to develop and present condition, relevant of defendant’s mental proof another factor made expressly above, admissible the statute. As noted the prosecu- tor to the argued circumstances the crimes showed defendant’s mental condition to be that of a calculating deliberate killer. Having evidence, failed to introduce defense any mitigating coun- sel had with which to counter this nothing Yet it argument. appears that such trial, evidence well have might been Prior developed. coun- sel arranged to have defendant examined by psychiatrists on two occasions for the purpose of determining whether there were grounds a diminished interposing defense at the capacity guilt he did phase; ask, however, that defendant be examined for the factors ad- missible mitigation phase. In declaration under *57 of Steven perjury, Hough, head in the deputy Beach of- Long fice of Los Angeles County Public Defender and a certified criminal law specialist with 14 years’ experience, states that a reasonably compe- tent attorney a client with a defending charged capital crime would not have declined to introduce evidence of factors mitigating without first on the obtaining advice or absence of such expert presence all fac- implication simply 5The parents that defense counsel had waited for defendant’s rebutted, come is by any forward of their own accord for example, indication in the diligent record he persuade that made efforts reach them before trial and them to testify according on their contrary, log son’s behalf. On the to the time that defense fees, support counsel submitted application attorney’s in of his for the first and only time contacted telephone days he defendant’s father was in a “interview” held three returned its of verdict death. after with the defendant’s condition. tors, psychological particularly regard view, also a declaration in of defendant submitted In corroboration this M.D., American Board of diplómate which John M. Stalberg, recites forensic specializing psychiatry, and Neurology Psychiatry case and and in this con- police reports that he has read psychiatric alia, that cludes, “It as a forensic Mr. opinion psychiatrist inter is my course, been, have matter of given psychological should as a Jackson in his report, Dr. specifically intelligence. Bailey, directed testing, materials and the and that Mr. Jackson is ‘illiterate’ psychiatric noted has confession indicate Mr. possibly transcribed would Jackson best, or, intelligence.” mental at borderline retardation below-normal this issue of of counsel is controlled showing adequacy by On In 25 Cal.3d 164-166.6 v. Frierson com- supra, People for filed with his corpus appeal, habeas Frierson panion petition who expressed submitted declarations of criminal experienced lawyers that a defense in a case would competent capital the opinion reasonably of evidence or wit- presentation through lay expert include mitigating relatives, friends nesses. He also offered “several declarations from and material which containing defendant acquaintances conceivably mother have his conduct. For defendant’s re- mitigated example, might his surrounding youth viewed certain circumstances and explanatory difficulties, never friend declared that he had seen and an adult family (Id. 165.) or at p. exhibit of violence any signs hostility.” from the evi- indistinguishable mitigating Such material essentially have case at bar.7 that could been introduced dence conclude, as we in Frierson these materi- (ibid.), although I did legal significance, “are of doubtful do demon- mitigation they als in been that at least someone have called to possibility might strate defendant’s behalf and to that his life be urge spared. testify [1Í]... 6Although portion appears the cited of Frierson plurality opinion of Richard Clark, J., J., son, J., Manuel, reversing judgment court unanimous in Mosk, J., Newman, (See (conc. opn. J.), id. ground. pp. on this Bird, Tobriner, J.), (conc. (conc. J.).) opn. opn. C. and 199 cruelly of defendant’s explanation 7It is irrelevant that some of that evidence—the given his appraisal Jackson and the character neglectful by childhood Mrs. favorable record on implied by Johnson—appears appeal the witness in the offered her magic petition corpus. There is no in declarations filed with the habeas rather than *58 (23 425-426) fully Pope pp. autho latter declarations. Our decision Cal.3d in the counsel; support a ineffective appellate the record to contention of rizes reliance on course, source, prepared generally parte more reliable than ex declarations by justify the claims raised in rather than affiant—to the fact—often counsel after corpus. for habeas petition counsel, It seems that trial highly unlikely the exercise of reasonable by would have been unable locate a witness diligence, to to single willing present some invited I mitigating testimony by section [former 190.3].” refuse believe that on this there lives a human planet who is ut- being without a terly single redeeming quality.
Ill Under shifts at this inquiry point to a consideration of the Pope, question whether “the record contains explanation for the chal- any (23 425.) lenged aspect of Cal.3d at In representation.” p. Frierson such an was offered explanation the form of a declara- People tion of defendant’s trial counsel submitted with the return. We summarized its contents as follows: “counsel asserts that he had unsuc- cessfully attempted to locate witnesses who ‘friendly’ might testify counsel, behalf of defendant at the penalty phase. According such witnesses would have been to intense cross-examination and im- subject peachment, would have been required to reveal adverse facts knew they addition, defendant’s In regarding character. trial counsel concludes that I determined that no evidence ‘Tactically of mitigating factors would be at the presented so as to minimize penalty phase case and People’s impress jury with the weight prosecu- (Italics added.) Moreover, tion’s burden.' defendant himself was not called because of counsel’s that ‘he would opinion make a wit- poor (25 165.) ness.’” Cal.3d at p.
We found the proffered explanation We totally unpersuasive. ignored counsel’s speculative fears of the effect of cross-examination on charac- Frierson, ter witnesses for well as as counsel’s personal opinion that Frierson would make a witness for himself. And we poor as le- rejected gally erroneous counsel’s “tactic” of evidence so withholding mitigating emphasize {ibid.) the prosecution’s “burden.” We reasoned that if counsel believed “the prosecution had the burden of to the proving of the appropriateness death counsel misunder- penalty, seriously stood the law.” The statute expresses no for either preference —death or life imprisonment without possibility parole—but leaves the choice to the discretion in jury’s light aggravating (at 166) circumstances We mitigating introduced. concluded “The took full of their People to introduce advantage right aggravating evidence,” conduct, while “Trial rather counsel’s than emphasizing ‘burden,’ People’s underscored the simply absence of cir- any mitigating case, cumstances in this greatly the likelihood that a enhancing verdict *59 result, view, Moreover, in such a our of death would be returned. foreseeable.” reasonably a the Frierson. By
On this issue too case at bar resembles closely return, defen- the have submitted a declaration of supplemental People his dant’s counsel his conduct of explanations trial containing as here that did not call phase. Insofar relevant he asserts he penalty in in “he defendant his own behalf because counsel’s testify opinion to he witness.” Counsel also states did not use poor would make a very at the trial con- reports examining they of the because psychiatrists defendant, tained and did not call the psy- statements” “damaging with chiatrists based conversations upon telephone themselves “because them, I that their would not have been favorable.” testimony believed excuses, course, con- The latter are not only self-serving wholly refute clusory Stalberg’s opinion but fail to Dr. that expert in his testing pos- should have been routine view of given psychological mental sible “borderline retardation.” defense counsel two reasons “I Lastly, specific why purposely divulges ”
did not the stand . . . As penalty phase. call witnesses to at the Frierson, with the trial tactic each of these reasons is legally erroneous. the minds first reason is that “wanted create doubt in counsel to their of Mr. Jackson’s knowledge relative to whether limited jury misconcep- involvement merited the death ...” Two
personal penalty. it are in this It is that in the phase tions reflected statement. true guilt a valid minds of be- is defense tactic “create doubt in the the jury,” cause the the burden of the defendant prosecution proving guilty has as beyond reasonable But we observed penalty phase, doubt. Frierson, burden; imply raising has no such prosecution “doubt” would somehow death application foreclose therefore “counsel misunderstood seriously here too suggests Furthermore, law.” a “limited counsel’s to restrict the plan only ,to the events knowledge” contrary of his client and his involvement in I, explained (part whole above purpose penalty proceedings: ante), Supreme under the decisions the United States governing necessary provide Court those are proceedings constitutionally before about authority person with reliable information sentencing hu- it and to that he as a individual uniquely insure or she treated Carolina, (Woodson v. man under the Amendment. North Eighth being pur- at Those p. 961].) 304-305 428 U.S. L.Ed.2d supra, pp. *60 are poses nullified when obviously counsel refrains from deliberately evidence at presenting any mitigating whatever the penalty phase. such a “tactic” can Again, as the result of counsel’s only explained serious of the relevant misunderstanding statutory constitutional law.
The second reason offered counsel for withholding extenuating evidence is that “The had prosecutor introduced minimal evidence only at the penalty phase but had other evidence of vi- very damaging other cious attacks on Mr. Jackson which it did people by [jic] introduce but which could have been possibly admissible in rebuttal if a defense relative to mitigating factors had been presented.” The assertion is both factually legally untenable. with,
To one begin counsel’s may question characterization of re- newed testimony in detail the describing bottle used bloody to sexually assault woman victim Ott as elderly . .minimal “only. evidence in Even aggravation.” less persuasive is counsel’s claim that the prosecutor had additional “very evidence of damaging other vicious attacks on peo- ple” by defendant that was not record, introduced. According while the jury deliberating guilt the prosecutor announced that if the penalty phase were reached he intended to offer evidence of cer- tain other criminal activity defendant as a circumstance in aggrava- tion. The prosecutor’s hurdle, however, first was the clear prohibition of the statute that at the penalty phase “no evidence shall be admitted re- other garding criminal activity by defendant which did not involve the use or attempted use of force or violence or which did not involve the expressed or implied (Former threat to use force or violence.” 190.3, 2d par.) The first item the prosecutor proposed § to introduce was evidence of a in which burglary defendant took some shirts from an apartment. In an effort to meet the violence, statutory requirement the prosecutor stated that defendant broke the apartment window with a rock. The offer, trial court rejected observing burglary “more a crime of stealth” than of violence. This reading statute is plainly correct. The “force or violence” referred to in former section 190.3 meant force or violence against person. of this purpose limitation was to place a reasonable restraint of relevance on the num- ber and kind of prior unlawful acts of a defendant that the prosecution should be permitted to introduce at the penalty phase. To extend the statute to include the offenses many involving least some degree force against property would defeat that purpose. Thus the Legislature cannot have intended base its decision as to whether the evidence, live or example,
defendant should die on that he used “force” to break a lock in order to steal a bicycle bicycle second-hand —or, here, to break window in order to inside slip an apartment and steal some shirts.8
The intended incidents that the were a remaining prosecutor prove an in which defendant involved and instance became purse-snatching with in an altercation other and and struck them teenage boys girls with his these are offenses “force or Admittedly involving fist. some statute; the of the but with the compared violence” within meaning double murder of which defendant had been convicted the just jury, by evidence of “vicious amount other they scarcely “very damaging” attacks.”9 believing forego-
More counsel was mistaken in that the importantly, if had miti- any have been admitted he introduced evidence could ing The second prosecutor’s on defendant’s behalf. circumstances gating that evi- the clear for prohibition except hurdle was statutory equally circumstances found the jury dence of the crime and charged special by the presented by “no evidence may prosecution at the guilt phase, been giv- notice the evidence to be introduced has unless aggravation time, as determined to the within a reasonable period en defendant 190.3, (Former 4th the court, par.) the Because the trial.” by prior § the evidence such notice as to proposed failed to give herein prosecutor and the trial court correctly and assault purse-snatching battery, late”; that the prosecutor that “it too court advised ruled comes if he it at the phase, be excluded such evidence would offered declined to do so. therefore prosecutor and however, evidence follow, that this admissibility It does not introduced evidence if defendant had somehow have revived would report by probation is that incident underscored relatively minor nature of 8The po prior conviction—another report, only defendant had one According to that herein. breaking jury—and it for mitigation not revealed to the tential circumstance to the taking explained Defendant some shirts. apartment and entering certain a he was spreading rumor that owner for spite he did it to probation officer moreover, with the defendant offense: was commensurate punishment, homosexual. The suspended, were degree burglary, proceedings guilty to second plead was allowed to placed probation. he was contrast, proof prosecutor introduced of Frierson the 9By penalty phase in the armed while several robberies had committed shortly murder before the boy and killed another only 15 age had deadly weapon, and with a shot joked about afterwards. it {ibid.) providing also contained an exception of his own. The statute notice in be introduced without such that evidence in “may aggravation (Italics in mitigation.” the defendant by to evidence introduced rebuttal course, added.) meaning has a settled emphasized phrase, to deliberate- improper prosecution code and case law: it is both rebuttal; is the latter of its case in chief until part withhold ly case, made the defendant’s necessary by restricted to evidence that is im- i.e., that is not introduced the defendant responsive proof 1093, 4; (Pen. Code, v. subd. People in his denial of plicit guilt. § accord, 737, (1957) 665]; People 753-754 P.2d Carter 48 Cal.2d [312 379, 461 P.2d 659]; Cal.Rptr. v. Cal.3d Mosher 371-372 55 Cal.2d Golden People
P.2d 448].) than the guilt phase.
This rule no less to the applies penalty phase First, in both Sec- proceedings.10 its is general purpose equally salutary ond, the rule the of the notice purpose requirement serves specific 190.3, i.e., of infor- former section to ensure full and fair presentation mation a bearing sentencing by giving meaningful on defendant intends to the evidence that the opportunity prosecution heard on be defeated if the manifestly introduce in That would aggravation. goal until were its evidence secret prosecution allowed to keep aggravating made however mitigation, slight—and any showing “rebuttal.” Such a construction then to it in the guise introduce right statutory would not render defendant’s only nugatory notice, fundamental right it chill the exercise of his more would timely circum- prove extenuating —both and constitutional—to statutory his stances in an effort to save own life.
For these reasons the to the notice statutory exception requirement must be limited to evidence that case in “rebuts” the defendant’s truly within mitigation of the rule. On the rec- meaning foregoing general ord before us the such prosecutor had no evidence. Proof that defendant committed a and struck some fellow in a fist teenagers purse-snatching could indeed have been introduced as of his fight by prosecutor part case in chief in the if he had defendant the phase given required orderly presen to assure an purpose subd. 10“The restriction [§ 4] confused; prevent party from will not be tation of evidence so that the trier of fact trial; dramatically introducing it late in the and unduly magnifying evidence certain he has met his party when a who thinks any surprise may unfair that result avoid piece of end of trial with an additional opponent’s suddenly case is confronted at the Carter, Cal.2d.) p. at 753 of 48 (People supra, crucial evidence.” incon- refuted or even been notice; have proof in no would way yet defendant’s testimony by with such evidence mitigating sistent his childhood or solicitude of his the conditions grandmother describing defendant’s limited her, showing testimony by psychologist towards or evidence proposed the prosecutor’s mental capability. Accordingly, such and de- testimony, “in rebuttal to” admissible would not have been to call refusing contrary believing fense counsel erred witnesses for that reason.11
IV (1969) 70 we v. Durham distinguished People in Frierson Finally, 198], multiple 449 P.2d Cal.2d 191-192 [74 evidence the record showed no specific mitigating in that case grounds: offered, counsel “marshalled ‘a spirited have counsel might cross- and “conducted substantial phase,” and able defense’ at guilt a well-reasoned ar- presented witnesses People’s examination (25 166). at Cal.3d penalty phase” to the gument the case at bar. facts Durham from same distinguish *63 that counsel II, ante), the record establishes As shown above (part defendant’s evidence on failed to develop present specific mitigating behalf, at the and cross-exam- phase, offered no defense whatever guilt Moreover, rather than being the penalty phase. ined on only briefly “well-reasoned,” pseudo- to the was a jury rambling counsel’s argument against calling declaration that he decided claim in his 11Defense counsel does not such a claim alleged “senility.” Nor would because of her Jackson as a witness Mrs. with, begin To mitigating evidence whatever. on put excused his failure to have inconsistency “very both senile” Mrs. Jackson was statements that above-quoted underscores the fact that of his expert subject was not an his view on the and “a little senile" having her a little bit.” guess “talked to layman’s after opinion, simply but medical noted, questioning his own conclusion from opposite drew the prosecutor, as making for the allowances jurors fully capable are importantly, Mrs. Jackson. More witness, just they testimony elderly an age appraising natural infirmities children, witnesses, distraught or young testimony of to accommodate the know how probation trial the language or customs. After the our foreigners not conversant with explanation of defendant’s understanding Mrs. Jackson’s difficulty in officer had no her; showing counsel why defense there is no history kindness towards personal Indeed, jury. even her ad to the give the same information asked her to could not have favor, countering any implication of in defendant’s age could have worked vanced elderly persons. As habitually cruel to youth who was defendant was a prosecution that had on the witnesses that he potential the few acknowledged, she was one of counsel circum grandson. In these strong support for her voiced penalty phase, and she had stances, testify on might have been called to “at least someone Mrs. Jackson was [who] (Frierson, p. 165 of 25 spared” urge his life be and to that defendant’s behalf Cal.3d). sociological discourse that purported to ask the jurors to aside their put of racial hatred feelings and fear but invoked unwittingly those very emotions against his client. Thus counsel repeatedly emphasized, lan- guage would have done credit to the district attorney, defendant had crimes;12 committed two terrible but instead of attempt- to ing extenuate this conduct eliciting sympathy defendant as a fellow human being caught the toils of a troubled personal history and a limited mental counsel capability, thoroughly dehumanized him by treating defendant as one of merely faceless, the “members of a un- differentiated mass” of black criminals young assertedly on the preying public From this today. premise counsel drew the dubious argument that the should show jury to mercy “them” so that will learn “they” to “us”;13 show mercy to and counsel warned that if repeatedly the jury fails to spare life, defendant’s others just like him will come inevitably forward to take his place no one will be safe.14 testimony, argument “you have heard terrible 12The abounds with such remarks as ladies,... testimony, gruesome are testimony.... It is a terrible crime both [W]e ladies, talking talking uncivilized acts on two old about civilized acts. We are about young commits this terrible crime....” ... situation where a man [This a] example, 13For young counsel told the that “These individuals' have hate in them engendered also. That hate is by things responsibility that are all our going and are to responsibility continue our right unless we show the right considerations at the time specter again, and. . .we don't raise the because neighbors, of fear of our fear our friends, security fear of where doing thing is. . .and we start the same to them that they may potentially do to us.” stop going Jackson and a lot of other Jacksons. going are stay.” Finally, are not going that, put went down. . ?. When it comes recognize that. here is that well.” in this happen ing to keep cornin’....” Counsel then went so far as is.” pretty darned Earl Jacksons fence, 14Thuscounsel going going them on with Earl Jackson. It isn’t you to do with these to do with these (Italics added.) society here. And going with a happen. are to be to take *64 you recognize a boat and crazy. sure all to take them and coming, counsel we have created certain No matter what barrier, selective, argued You them all out another [11] get Elaborating warned the think it is young more and more and a little young Another ship that “it isn’t because if that in this it, thing because the nature of this crime does not indicate that we them back to blacks? One blacks? guardhouse going you out, ship thing for sure is going on his you you decide What are we we will kill them whenever we can. What are we them in one society going situations that—we Is this the answer that “if stop are not are theme, sure, happen, you thing up on the more. And here in this you Africa, selective, with Earl Jackson because there is a lot of we have created certain monsters and also stop you you are not going for sure. One counsel reiterated that “He going state, that is for sure. That ain’t felt are not with hill, to assert that “what is then to shoot them. If you are dreamin.’ one should particular jury, going one to do with them? What are we Earl Jackson and isn’t right really and all of you going thing to going thing here, are create don’t deal with.. to take them out and for sure. That is not get just wrong for sure is us, They it, stop it isn’t as you hiding way state and you you are here to it. It is exists, important think like better be this trial going going you have to behind as he .too you this go are to observes, this As defendant on record he would correctly probably have had a better a sentence of life receiving imprisonment chance his counsel had made at parole without if all. possibility no.argument Frierson, therefore, in tactic Here as counsel’s underscored the “simply case, in absence of circumstances this mitigating greatly enhancing Moreover, death be likelihood that a verdict of would returned. such a (Italics result, view, omitted; in our foreseeable.” reasonably 166.) Cal. 3d at p. reasons,
For all these Frierson rather than Durham is controlling the case at this had bar. To hold that ade- constitutionally not, submit, assistance of counsel but Frierson did I quate would be unfair. I would therefore reverse the arbitrary fundamentally judg- ment as to 20910 and the writ Crim. of habeas penalty grant corpus in Crim. 21285.
V Because my opinion a reversal of the judgment is re- penalty quired, it is not to reach the issue of the necessary constitutionality the 1977 death penalty legislation. Green 27 Cal.3d (People 49-50 However, 609 P.2d 468].) since all col- my have leagues spoken on the I shall subject, add briefly my conclusions. (25 In separate 188), in Frierson Cal.3d at I my opinion p. recog nized that of the death under validity penalty California (Id., 189.) Constitution can no And I longer questioned. p. although did not then find the to be and unmistak “clearly, positively Constitution, invalid under the United States I deemed it ably” prudent to withhold a determination of whether the 1977 act can be construed (Id., 195.) constitutional its face. The reason for such prudence was that we were not there with “an presented otherwise unimpeachable (Ibid.) Nevertheless, of death.” I did judgment ventilate many is sues addressed in the present and the dissent of the majority opinion Chief Justice: I refer discussion 192 to 193 particularly pages concurrence, Frierson and to the raised in my points footnote {id., 193). *65 thereof p. further I
Upon now conclude that the 1977 suf- analysis, legislation some, all, fers from but not infirmities itemized Chief by the Justice in her opinion herein. dissenting
337
First, our statute does not
the
to find
require
sentencing authority
that at least one of the
factors is
statutory
proved
aggravating
beyond
doubt,
reasonable
(1976)
as in
v.
Georgia (Gregg
Georgia
supra,
153, 166,
859,
U.S.
fn. 9
L.Ed.2d
(plur.
is
opn.)).
jury
[49
870]
told that both
guilt
special circumstances must be proved
beyond
doubt,
reasonable
but not
This creates the
aggravation.
risk that
the
awesome question of whether the defendant should live or die will be
decided
“a
by
evidence, i.e.,
mere preponderance of the
‘under the same
standard of proof
applicable
run-of-the-mill automobile negligence
actions.’”
v. Burnick
(People
Cal.3d
[121
488,
Second, there is no that the requirement be jury unanimous find- the ing statutory factor or aggravating factors which it upon bases its decision on an penalty. instruction on Again, must jury unanimity given as to guilt circumstances, and special but not as to aggravation. This suggests real very that possibility condemn jury may to die without even able to being on which agree aggravating factors were proved—some jurors factor, their verdict on one basing other jurors on another.
Third, there is no requirement with re authority primary (the here,15 sponsibility as in fixing jury Georgia Texas; Florida), the court in specify writing particular statutory aggravating factor or factors upon which it relies in order to reach a sentence of death. Yet this is step essential for a rational review both by the trial court on various post-trial motions and this court appeal. “Where the sentencing required to the factors it re authority specify decision, lied upon its the further reaching safeguard meaningful review is appellate available to ensure that death sentences are not im posed or in a freakish at capriciously manner.” 195 of 428 (Gregg, accord, U.S. L.Ed.2d at pp. 886-887]; v. Florida [49 Proffitt 913, 922, 428 U.S. L.Ed.2d 96 S.Ct. (plur. opn.).) 2960] Fourth, there is no requirement find the jury aggravating factors, factors as in outweigh mitigating Florida at (Proffitt, p. 250 of 428 U.S. L.Ed.2d nor is the in pp. 921-922]), structed that such must be unanimous and a reasonable finding beyond doubt, much, all, nor is there direction as to how if at aggrava- Frierson, People 15See supra, page (conc. 25 Cal.3d at opn. footnote 7 Mosk, J.). *66 i.e., or mere preponder- the mitigation: by slight tion must outweigh are ance, these overwhelmingly. Surely safeguards or or substantially, in the arbitrary infliction of the death prevent penalty also necessary Court. Supreme manner the United States by and random denounced the foregoing to find at least some of Although purport majority statute, so they by in the do requirements already largely constitutional the device of under the of it. legislation guise construing rewriting Indeed, in Newman claims it opinion explicitly his Justice concurring read into the death statute all penalty would be for this court to proper omitted requirements by Legisla and future constitutional present ture, course, no matter how fundamental. This of violates not technique, (Cal. Const., the basic of art. only principle separation powers III, 3), deci but also an of this court in our unanimous express ruling § 444-445 sion in Rockwell v. Court 18 Cal.3d Superior 650, 556 We there an identical rejected sugges P.2d 1101]. (at 445) us tion ask not to by People, reasoning “They but to rewrite the law.... Decisions as to which criminal de interpret, fendants shall suffer the death whether these shall be decisions penalty, made or whether and to what extent a determination by judge jury, court, is reviewable the trial court and the reviewing by and/or this to be court to arbi scope responsibility given safeguard against of the death are matters of concern. trary imposition penalty legislative Were and crite this court to to devise the attempt necessary procedures ria we but would also be province, would not invade the only legislative in the on the position having pass objectively constitutionality our own Even the of Justices procedures design.” concurring opinion (id. 448-449) pp. Clark and McComb Rockwell concluded “Because intended to enact our so a constitutional Legislature clearly statute, its death and because failure to do so was so clearly caused the Furman court’s failure to provide intelligible guidelines one is General’s frank tempted accept Attorney legislation, it under the rewriting guise interpreta invitation save law by not, other, However, must in this case or act as a tion. the courts (Italics added.) super-legislature.”
Because the 1977 death contains none of the four penalty legislation herein, fundamental I requirements identified col- join my dissenting the act infirm its under face leagues finding Eighth Fourteenth Amendments to the United States Constitution as construed in Furman and Gregg. *67 as I would to judgment reasons reverse foregoing
For all penalty.
Tobriner, J., concurred.
BIRD, dissent. I respectfully C. J. illiterate and impoverished, this court his death an
Today, sends to 19-year-old youth by affirming judgment retarded black possibly were if offense in- this would not to reverse other court hesitate affirm a it is unconscionable to volved. I submit respectfully conviction on a record that indicates following: in- (1) independently made no to State-appointed attempt counsel to reports. evidence read the prosecution’s except police vestigate (2) incident or involvement was appellant’s No investigation conducted counsel. by in
(3) obtaining An and unreasonable occurred unexplained delay an had de- to assist whether expert determining appellant counsel fense based on his mental condition. evidence and
(4) to all the No action whatsoever was taken discover to prior to the ensure it be revealed information known state and would trial. of crimi-
(5) the law aspects Counsel was of ignorant important nal procedure. at the penalty evidence present any Counsel failed to completely a death entry
phase, equivalent consenting which was sentence. responding than forthright counsel was less Appellant’s phases. incompetence guilt penalty
claims his I cannot as failings nonprejudicial. dismiss counsel’s majority guilt for and handling ineptness Counsel’s agree. preparing denial of amount to a this so egregious trial was phases a direct state as re- will be taken A man’s life young due process. sult these errors.
I to conduct of a crime has a “duty an individual accused Counsel for *68 with a view to and inquiries investigations careful factual and legal make informed deci that he may of defense order matters developing (1970) (In Cal.3d ...” re Saunders on his client’s behalf. sions re of this 921].) duty 472 P.2d Performance 1041 [88 all “explore that counsel and necessitates quires investigation prompt guilt....” of degree to facts relevant to guilt avenues leading 1971) 4.1.) Standards, std. (ABA Draft (Approved Defense Function statements admissions or of the accused’s This “exists duty regardless desire to plead or his stated constituting guilt of facts lawyer observed, has {Ibid.) American Bar Association As the guilty.” “[t]he repre- to competent the lawyer of effective investigation by relationship he is not investigation without adequate trial is for patent, sentation at mechanisms as cross-exami- use of such to make the best in a position plea to conduct witnesses at trial or of adverse nation or impeachment about possible to know as much He needs effectively. discussions advantage impeach- witnesses to take character and background solely to be measured his is not advocacy effectiveness of ment .... The trial; he preparation careful in the without does lawyer what investigation make adequate pretrial Failure to fulfill his role. cannot assistance of ineffective finding may grounds and preparation 4.1.) {Id., com. to std. counsel.” to all applies “substantial factual inquiry”1 to conduct duty be of even cases, this would seem to duty but performance
criminal Yet, the life is at stake. in cases where the client’s importance greater for the preparation establishes that counsel’s in the case present record he preparations nonexistent. What virtually trial was of the phase guilt or both. tardy inadequate, extremely grossly did make were either at the guilt phase testified for the prosecution witnesses Twenty-nine had been more counsel Although appointed trial. appellant’s defense inves he did not interview or testimony began, than a their year before did he time. Nor during these witnesses one single tigate effort at tasks.2 His entire out such carry an investigator employ Saunders, page 1048. supra, 2 Cal.3d at 1In re investigator on his hire an not a fiord to indigent and could appellant 2Whlle appoint court to the trial would have authorized 987.9 section Penal Code own. with two of three one-hour sessions “witness” consisted of interviewing had information of whom apparently aunts—neither appellant’s the three interviews was devot one of phase—and pertinent guilt Neither of these two “clothes for defendant.” obtaining ed merely Thus, full “prepara in the course of a year’s testified at trial. persons case, two counsel at most spent the trial of a defense capital tion” for case. prosecution’s hours nonwitnesses about interviewing Counsel was also lax in extremely investigating possibility his client have had a diminished defense to one might capacity pertinent or A both homicides. examination of a psychiatric person accused *69 of a crime should be as performed possible soon after the events at issue in order that the results reflect the accurately of indi- capacity However, vidual at time of the offense. trial counsel in the present waited until the case trial date—more than four months after his first and over seven months after the second homicide—to re- appointment, that a to examine his client.4 quest psychiatrist appointed case did file a formal motion for dis- Trial counsel this not capital He did not even take the to activate the simple steps necessary covery. Instead of this pursuing court’s informal superior discovery policy.5 Trial counsel did not avail his case. defense of investigator to assist in the pay for an section. of the benefits of this himself fails to disclose “the majority’s that the record now before this court 3The assertion (See maj. investigative is not accurate. precise pretrial extent of own efforts” counsel’s ante, to investi 288.) up backs his claim of his counsel’s failure opn., gate by Petitioner superior court. Counsel filed trial counsel in the reference to a document listed, reading preparation, transcript, “in perjury, spent the time he under witnesses, research, client, legal interviewing or other.” This declaration is interviewing appellant’s with aunt to obtain it even reveals a one-hour “interview” so detailed that the trial. telephone appellant’s call with father after for trial and a one-hour clothes declaration, likely it is not included in the Simply by virtue of the details counsel to issues at the trial. investigative pertained efforts he made that counsel omitted some competency. on his He has fully of the multifaceted attack Trial counsel was aware to those factual matters which he deemed to be inaccurate. responded in an affidavit accurately reflect declaration he filed below failed He has never contended that the “precise trial. The extent investigative phases appellant’s both his efforts as to by the record now before investigative fully established pretrial efforts” counsel’s own this court. aspects for other preparation to extensive delay cannot be attributed 4Counse's appointment to the represented appellant prior During period fhe he ease. appellant’s average per than two hours week of out-of- of less devoted an psychiatrist, a court time to counsel this case. required merely counsel to serve a written policy would have enlightened 5This local attorney’s days office at least 25 before trial. Once discovery on the district request for served, follows binding prosecution prosecutor unless the on the request becomes action, minimal course of trial relied on the solely good graces counsel of the prosecutor the case. While the assigned try prosecutor general- ly defense provided files, counsel with access to his everything files, problems arose with his respect discoverable materials inmates, pertaining to Mark testimony county two jail Mickles and Ronald McFarland. months before
Mickles had been interviewed officers several by police trial, this in- a police report concerning but the officers did not prepare Conse- nor did turn over their notes to the they prosecutor. terview as a of Mickles’ existence defense counsel not even aware quently, As to the witness witness until of the trial. potential the commencement McFarland, but to trial prior trial counsel was aware of his testimony had to the police discovered trial that McFarland’s statement during asked for the tape tape, prosecution been recorded. When counsel it discovered that had been lost. and McFarland of Mickles testimony
Counsel to the objected Howev complete discovery. failed to provide that the prosecution basis *70 “a proper made never counsel er, recognizes, the opinion majority Therefore, 308.) objections counsel’s (Ante, at discovery. p. request” “theory” or “spirit” of the violation upon an asserted merely were based .6 the trial court by overruled of and were discovery properly to pertaining to all the facts In addition to these casual efforts learn trial, poor prepara- the demonstrated phase the of defense counsel guilt trial, a to Prior motion brought tion on issues of law. to counsel mo- called this a to the Counsel police. confession suppress appellant’s the The theory underlying tion under Penal Code section 1538.5. Counsel was nature of the confession. involuntary motion the allegedly does the that section 1538.5 motion was of fact a ignorant apparently (See v. People Superior to a statement on basis. not lie suppress policy, superior court regarding noncompliance. Under the procedures the delineated attorney’s continuing obligates the district request be deemed a one.” It both the “shall “all discovery agencies permit by the accused investigating police the to office and departments. known to those possession of or information evidence” the the and/or comply properly with if does not policy imposition the of sanctions the state The allows discovery request. the informal point, arrangement pros- majority 6At one the state that defense counsel’s with the {Ante, regarding discovery “approved by court.” ecutor trial at 291.) Rather, p. is quoted portion This of the statement incorrect as a factual matter. elsewhere, legal majority recognize prosecution duty as the was under no to furnish {Ante, discovery proper request case of “the therefor.” this because absence 308.) Court (1975) 15 Cal.3d 733-736 (Zolnay)
P.2d It 1390].) such permissible motion bring pretrial pursuant motion, Evidence Code section but the on a section 402 ruling motion, unlike a on a ruling section 1538.5 is not on the trial binding (See Saidi-Tabatabai Court (1967) court. Superior Cal.App.2d Cal.Rptr. 510].) Thus, counsel’s pretrial motion regarding voluntariness of the confession should have been renewed before the trial judge outside However, the presence of the jury. counsel’s first feeble efforts to renew the motion were not made until the events had occurred be- following (1) fore the jury: discussed prosecutor the confession in his opening statement; (2) officer, who had taken confession, appellant’s testi- fied that appellant had made a statement tape-recorded which he first denied but guilt truth”; then said he (3) “would tell us the the tape officer; were recordings (4) identified of the copies transcript the statement were distributed to all of the the first be- jurors; tape gan be played; defense counsel requested tape played at a louder volume. Not until this did point defense counsel speak and ask up approach bench. He said he was “not making any objection just for a asking point information.” He said [but was] he “just to cover bases.” He asked the “if it is judge wantfed] [his] proper to re-raise that motion to the [relating of the con- admissibility in front of this Court....” The judge informed correctly fession] counsel it was indeed proper to raise the issue again. jurors were told not to “read ahead” in the and a tape transcript, was held hearing outside the presence of the admissibility statement. *71 time, course, this By were jurors aware of the fact fully of appel- lant’s confession. No matter how the trial court ruled subsequently as to admissibility, the could not have been expected to it. A more forget inept of a motion handling legal an by would be difficult to attorney imagine.
The obvious of trial inadequacy counsel was established fully his by (1) failures investigate facts and the law and to file dis- any covery motion. These cumulative omissions would have been inexcusa- ble even in a trial for theft. petty there is Unfortunately, yet another deficiency counsel’s representation. The affidavit filed in this court trial by counsel illustrates a lack graphically of candor with either this court or the trial court. trial,
At counsel to the objected of Ronald McFarland be- testimony cause it violated the “spirit” He told the discovery. trial court that he did not “find out” about McFarland until the prosecutor’s opening statement. When the prosecutor responded defense counsel had been given police reports earlier, McFarland several months counsel answered he had these ignored reports because McFarland’s name was not on the prosecutor’s witness list.
In his court, affidavit before this counsel now claims that “in fact I had adequate and full from the discovery prosecutor relative to Mr. McFarland.” He contends he made a tactical decision not to send an in- out to vestigator interview McFarland because such a course of conduct “would not have been However, benefit.” it is difficult to recon- cile this of counsel’s aspect with his statements and affidavit behavior at trial. Ten trial days began, counsel asked the appointment after an investigator interview McFarland. This request came so late that even it was though promptly granted, the investigator was unable to contact McFarland until after McFarland had his direct completed tes- timony.7 inability to interview McFarland—far from of no being concern, as is now counsel asserted—required to inform the trial court he was “not prepared to cross-examine adequately Mr. McFarland.”8 admission, As a consequence counsel’s the trial cross- judge delayed examination to a later date. this
Despite
counsel,
abysmal performance
trial
majority up-
hold
In
appellant’s convictions.
so doing,
they ignore
right
“[t]he
have the assistance of
counsel
too fundamental and absolute to allow
courts to
in nice calculations as to
indulge
the amount of
aris-
prejudice
(Glasser
United States
from its denial.”
ing
315 U.S.
680, 702,
L.Ed.
345
In
(1967)
v.
Chapman
705,
386
18
U.S.
L.Ed.2d
87
[17
California
824,
S.Ct.
24 A.L.R.3d 1065], Court
Supreme
noted that denial of
to
right
counsel was not
those “constitutional errors
among
which in
of
setting
are
particular case
so
unimportant
insignificant
they may,
Constitution,
consistent with the Federal
be deemed harm
less, requiring
(Id.,
automatic reversal of the conviction.”
at
22p.
L.Ed.2d at p. 709].) On the
contrary,
court reiterated its
[17
position
the right to counsel is “so basic to a fair trial that
in
[its]
fraction can never
(Id.,
be treated as harmless error.
...”
at
23 and
p.
fn. 8
“That,
L.Ed.2d at
indeed,
p. 710].)
was the whole
of
point
[17
Gideon v.
Wainwright
[1963]
372 U.S.
335,
overruling
Betts
v. Brady
[1942]
It is clear that “the
right
counsel is the
effective assis
right
(McMann
tance of
(1970)
759,
counsel.”
v.
771,
Richardson
397 U.S.
14
763, 773,
fn.
L.Ed.2d
omitted.)
90 S.Ct.
citations
1441],
“‘After
[25
all, the purpose of Gideon was not
criminal
merely
supply
defendants
bodies,
with warm
but rather to guarantee reasonably competent representation.’”
(Coo
Fitzharris,
per
586 F.2d
fn. 11
supra,
(conc,
Hufstedler,
and dis. opn.
J.).)
Court’s decisions
Supreme
have
reversed
generally
criminal convictions for denials of effective
assistance, even
counsel
have been
though
may
physically present
trial,
throughout
and even though
could not be shown.
prejudice
(1975)
(Herring
v. New York
These cases that the harmless error rule should support principle not be used as a cure-all to affirm a conviction where there has been a denial of the to effective assistance of counsel. That is “more right right than a to be free from trial errors. The right prejudicial right compe- fairness that procedural tent counsel is also based on considerations the case an accused.” apply regardless strength against *73 Fitzharris, 1335, (conc, 586 F.2d at fn. omitted supra, p. (Cooper v. Hufstedler, J.).) and dis. opn. charge in the trial of a serious
This has acknowledged court “[i]f neglects prep or even a chosen one attorney grossly an appointed right is the defendant deny aration of the case the effect (In 384, 386, 236, (1965) re Rose Cal.Rptr. 62 Cal.2d counsel.” [42 omitted.) 398 P.2d citation 428]
Reversal is
an absence of demonstrated
be
despite
prejudice
required
do,
and is either not
cause “the evil lies what
does
attorney
record,
a time when
record is
on the
or occurs at
no
readily apparent
Fitzharris,
1332.)
586 F.2d at
In such situ
(Cooper
supra,
p.
made.”
v.
ations,
not be susceptible
a rule
“would
requiring
showing
prejudice
even-handed
and would
application”
require “unguided
of intelligent,
Arkansas,
at
speculation.” (Holloway
supra,
v.
U.S.
490-491
pp.
at p. 438].)
L.Ed.2d
rationale,
have re
its
courts
many
with this
precedent
Consistent
the claim of ineffective assistance
when
quired
showing
prejudice
v. Fitzhar
and omissions at trial.9 (Cooper
of counsel is
based on errors
(3d
ris,
v. Rundle
ex rel. Green
1325;
United States
F.2d
supra,
(D.C.
1973)
States v. DeCoster
1112;
Cir.
United
1970)
434 F.2d
Cir.
730.)
(3d
1970) 432
v. United States
1197;
Cir.
F.2d
Moore
487 F.2d
when
different rule
the need for a
have recognized
Even these courts
example,
For
from the record.
cannot be determined
prejudice
instances ineffective
has said: “In many
of Appeals
Third Circuit Court
the process
an effect on
pervasive
have had so
of counsel may
assistance
accurately
to determine
impossible
that it
determination
guilt
of de
instances a finding
In such
absence of prejudice....
or
presence
more,
without
competence requires
normal
the standard of
from
parture
Rundle,
434 F.2d
(United
supra,
ex rel. Green
v.
States
trial.”
a new
1115.)
Cal.Rptr.
Pope
23 Cal.3d
People
with
view is consistent
9This
732,
ineffective as
govern claims of the
principles to
Pope established
In Amendment, addition to the Sixth the lack violating of adequate factual pretrial and the investigation of counsel at failings the guilt phase trial also amounted to a denial of due process and fundamental fairness in the context of this capital trial. The United States Supreme Court has made long distinctions between the standards of fairness that apply capital (Powell cases as opposed to other criminal cases. v. 45, (1932) Alabama 158, 172, 287 U.S. 71-72 55, L.Ed. 53 S.Ct. [77 84 A.L.R. 527]; 45-46, Reid v. Covert 354 U.S. 77 L.Ed. [1 1148, 1179, 2d 1196-1197, 77 S.Ct. cone. (separate opns. 1222] Harlan, JJ.).) Frankfurter and More recently, court has high explic stated itly that due process is stricter in death scrutiny cases. (Woodson v. North Carolina 428 U.S. L.Ed.2d 944, 961-962, Stewart, Powell, Stevens, JJ.).) S.Ct. (opn. 2978]
The high court set forth the
reasons
standard is re-
why
higher
quired in cases which involve the death
“From the
penalty.
point of
defendant,
view of the
death
is different in both
penalty]
its sever-
[the
and its
ity
From the
of view
finality.
point
the action of the
society,
sovereign
the life of one of its citizens also differs
taking
dramatically
10Poinling
importance
investigation,
out
of such
the Third
recog
Circuit has
nized
such
errors would not be visible in a trial record. “The exercise of the utmost
during
enough
neglected
skill
the trial is
if
necessary
counsel has
investigation
preparation
of the case or failed to interview
arrange
essential witnesses or to
omissions,
course,
rarely
their attendance. Such
will
be visible on the surface of the
States,
(Moore
supra,
739.)
trial
v.
. . .."
United
432 F.2d at
11People
Pope,
supra,
page
from other state legitimate 393, 402, 1197].)12 L.Ed.2d S.Ct. U.S. 357-358 *75 existence of very to the requisite of counsel is often a “The assistance 25, (1972) 407 31 L.Ed. U.S. v. Hamlin a fair trial.” (Argersinger [32 Alabama, 287 535, v. 530, see also Powell 2006]; supra, 2d 92 S.Ct. Indeed, the Sixth Amendment L.Ed. at p. 170].) U.S. at 68-69 pp. [77 of an “‘immutable principle justice,’” to counsel was considered right Bill in the of first contained guarantees was one of the specific and due clause. process to the states the applied through which was Rights Alabama, (Powell 172], 71 L.Ed. at p. p. 287 U.S. at supra, v. [77 780, 790, 366, (1898) 169 L.Ed. v. U.S. 389 Hardy Holden quoting [42 18 383].) S.Ct. the state execute a may person in this case is whether question his case. investigate failed to attorney properly
when his state-appointed inter- this must weigh society’s In determination of the court question, a of the death the of fairness the administration appearance est in out, is of pointed impor- As has vital the Court penalty. Supreme “[i]t the decision community tance to the defendant and to be, be, rather sentence and based reason appear death impose Florida, (Gardner at v. 430 U.S. supra, than or emotion.” caprice p. p. 402].) L.Ed.2d of death under
There is an of caprice judgment indeed element the random misfortune of Appellant appointment review. suffered his investigate of who failed to state-appointed independently attorney A ruling who criminal procedure. case and lacked basic knowledge repre that this lamentable such as that rendered being by majority only fairness can procedural sentation satisfies the standard of highest dis and charge penalty arbitrarily lend to the death credence retain who are unable to poor, inflicted criminatorily upon counsel.13 competent 12WhiIe Woodson and Gardner were concerned with procedural penal fairness in the “ that; trials, ty capital reasoning phase high recently court ruled he same [t] (Beck guilt apply reliability must to rules that diminish the of the v. determination.” 392, 403,
Alabama 447 U.S. L.Ed.2d S.Ct. 2389-2390].) ad complaint pre-1967 this was found to be true of death 13The substance of and the President’s Commission on Law Enforcement Administration ministration disproportionately imposed on the “The death sentence is and carried out Justice: (The Challenge poor, Negro, unpopular groups.” of Crime members 143.) Society p. Free case, In this counsel was either unable or his unwilling investigate client’s cause. we can never know what would have “Ultimately, hap been for even pened provided, had competent representation seemingly cases in the hands of effective hopeless take turns may unexpected Fitzharris, (conc, counsel.” 586 F.2d at (Cooper supra, Hufstedler, J.).) dis. opn. How can the court divine what have might if counsel had conducted a into his client’s happened prompt inquiry mental status or a witnesses thorough investigation prosecution’s or careful research into matters of Un legal discovery procedure? circumstances, der these this court in “nice indulge should Rather, calculations”14 or it should reverse the “unguided speculation.”15 *76 entered below since did not receive the effective as judgment appellant sistance of counsel at either the or of his trial. guilt penalty phase16
II Next, the constitutional of the old 1977 death law validity penalty must be addressed. The set forth in the procedures old 1977 death pen differ alty legislation17 from those only superficially contained pre-1972 death statutes. The laws penalty pre-1972 were declared un constitutional because failed to they give adequate guidance judges and as juries crimes, to which persons, convicted of live capital should and which similar, should die. Despite fact that these statutes are in their majority find the 1977 opinion curiously consti legislation (See tutional. (1972) 349, 352, v. People 8 Cal.3d fn. 2 Murphy [105 138, also, 503 Cal.Rptr. (1979) P.2d see 594]; v. Frierson 25 People 142, Cal.3d 281, (lead 176 599 P.2d of Rich opn. [158 587] ardson, J.).) First,
The
err in
on an
majority
important
two
respects.
they rely
articulated
three
this court
analysis
only
v.
by
justices
People
Frierson,
Second,
25
at
supra,
majority ig-
Cal.3d
172-188.
pages
nore the fact that the United States
Court intended its recent
Supreme
States, supra,
page
page
315
L.Ed. at
14Glasser v. United
U.S.
76
702].
[86
Arkansas,
15Holloway
supra,
page
v.
435
page
U.S. at
491
L.Ed.2d at
[55
438].
agree
16I
analysis
appellant
with Justice Mosk’s
did not receive the effective as
sistance of
penalty phase
counsel at the
of his trial.
1977,
316,
seq.,
chapter
repealed by
17Former Penal Code section 190 et
Statutes
ini
7,
7)
(Prop.
tiative measure
seq.
on November
1978. See Penal Code section 190 et
by Proposition
enacted
7.
subsequent
All
opinion
references in this
to code sections shall be to the California
Code,
Penal
unless otherwise stated.
in se-
to be more than mere exercises
punishment
decisions on capital
required
federal Constitution
mantics. A death
statute
detailed
The
“specific
guidance.”18
or
with
provide
jury
judge
this
legislation
important
requirement.
does
meet
constitutional
in 1972 when the United
history begins
relevant
States
Court
its decision in Furman v.
Supreme
issued
Georgia
There,
Furman left unresolved two Can a major questions. sentencing judge or jury constitutionally any discretion whether given determining to impose a death If some were how permissible, sentence? discretion *77 much the does in order to guidance require pit Constitution avoid falls identified in These were in five questions Furman? addressed 2, cases handed companion July down 1976.19 Not only allowed, discretion it was at least the over constitutionally required, for (Woodson, 280; whelming of 428 majority crimes.20 U.S. Rob supra, 325.) erts (Stanislaus) 428 U.S. supra, 923, 913, 242, (1976) 96 S.Ct. 253 L.Ed.2d 2960]. v. Florida 428 U.S. [49 18Proffitt 859, (1976) 2909]; v. S.Ct. 19Gregg Georgia v. 153 L.Ed.2d 96 428 U.S. [49 Proffitt Florida, 242; 929, (1976) supra, 428 262 L.Ed.2d 428 U.S. Jurek v. Texas U.S. [49 280; Carolina, (Stanislaus) supra, v. 428 U.S. Roberts 2950]; 96 S.Ct. Woodson North 974, Hereinafter, (1976) S.Ct. these
v. Louisiana
351 However, that Gregg it an understatement to observe et al. gave in Furman. of the issues left open few clear cut answers to the second Gregg provided decisions since have not nec guidance The relevant Nevertheless, certain themes do to resolve this question. general essary If authorize a death sentence as punishment a state wishes to emerge. murder, to tailor and “it has a constitutional responsibility apply infliction arbitrary capricious its law in a manner avoids 446 at 428 penalty.” (Godfrey, supra, p. of the death U.S. L.Ed.2d [64 406, 1764].) at 100 S.Ct. at It must reserve death sentence for p. p. 428 (Gregg, supra, of cases. U.S. L.Ed. p. most extreme [49 Stewart, Powell, Stevens, JJ.).) 2d Even within at pp. (opn. 882-883] offenders, of extreme there must be a “mean provided this population the cases in which death should be basis” for ingful distinguishing (Lockett v. Ohio it from those in which should not. imposed U.S. L.Ed.2d 98 S.Ct. (plur. opn. 2954] C.J.).) makes it more certain that the Such a “basis” decisions Burger, will be rational and consistent sentencing judges juries (Ibid.) a state. The court also found a constitutional need to throughout ensure the the determination that death is the “reliability appropri [of] (Woodson, ate 428 U.S. at supra, punishment case.” specific Stewart, Stevens, Powell, L.Ed.2d at fn. omitted p. 961], (opn. JJ.).)
To effectuate these constitutional Court indicated goals, Supreme are at both the trial and court lev safeguards necessary appellate els. The state “must channel the sentencer’s discretion ‘clear and standards’ that and detailed objective provide ‘specific guidance,’ *78 that ‘make reviewable the a sentence of rationally process imposing 446 at 428 L.Ed.2d at 100 (Godfrey, supra, p. p. death.’” U.S. [64 Woodson, omitted; S.Ct. at fns. see also 428 supra, pp. 1764-1765], at 960-961].) U.S. 303 L.Ed.2d at p. pp. [49 the Discretion the
Controlling Sentencing of at the Authority Trial Level individual has been
The
has indicated that once an
Supreme Court
offense,
informed,
focused,
convicted of a
there must be “an
capital
whether he should be
and
into the question
guided,
objective inquiry
at
(Proffitt,
California’s 1977 law does the introduction of relevant permit dence, but it to which the provide by sentencing fails standards evidence, (2) that the can evaluate that to ensure authority safeguards or or sentenc- judge permissible does in fact focus on the important considerations, (3) that impos- a mechanism to ensure decision ing any reliable, enable a a sentence of death is to ing procedure take a sentencer’s decision to reviewing court to evaluate meaningfully as to clarity life. Whatever be said the lack person’s may válidly Frierson, (see, Court supra, United States in this area Supreme e.g., (cone. Mosk, J.)), 25 Cal.3d at ques- 190-195 it is a pp. opn. highly this uphold legislative tionable assertion that court would high scheme with shortcomings. all its is its
Preeminent among shortcomings legislation complete failure to standards. au- provide sentencing The meaningful “the thority directed former section 190.3 to consider aggravating However, circumstances referred to in this ...” section. mitigating the section allows which any consideration circumstance explicitly (See 190.3, deems former extenuating. to be sentencing authority § whether subd. The statute fails inform the (j).) sentencing authority its consideration of circumstances is aggravating similarly open-ended.21 alone, be to invalidate this sufficient
Standing imprecision might the sentenc- 190.3 does direct procedures, the 1977 since former section set forth at least the “factors” authority particular to consider ing sug- Court has (a) Supreme subdivisions United States through (j). may of sentencing guidelines requirement the constitutional gested evidence into second 190.3 allows introduction 21The sentence of former section However, of, alia, aggravation. any ...” matter relevant inter “evidence.. .as sentencing author mean that aggravation is admissible does not fact that evidence Supreme has held chooses. The Court ity may use the manner it evidence guide the infor its use of sentencing authority “provided with standards must *79 language of p. 887].) The p. L.Ed.2d at 428 195 (Gregg, supra, mation.” U.S. [49 regard. Although instructs in the section problematical section is this former 190.3 in referred to by aggravating.. .circumstances sentencing guided “the authority to be section,” to the are limited aggravating circumstances it unclear whether those this is to (a) “any whether matter relevant through (j) or 10 “factors” listed in subdivisions a death sentence. imposing the basis for aggravation” may used as be given jury appellant’s holding instructions today’s nor indeed the majority Neither ambiguity. this important addressed 353 is “guidance” be satisfied if the sentencing authority given regarding State, those which “the deems representing organized society, factors to the 428 particularly sentencing (Gregg, relevant decision.” supra, Stewart, p. 885], U.S. at L.Ed.2d at italics added (opn. Powell, Stevens, JJ.).) The thrust of this language Gregg appears be to ensure that the state inform of the sentencing authority prima- it seeks to its ry penological through capital advance use of purposes (See of decision punishment so is McGautha consistency possible. 768-773, L.Ed.2d U.S. 280-287 [28 California (dis. Brennan, J.).) 91 S.Ct. opn. of 1454] Since the legislation fails inform the sentencing authority to which of the enumerated factors are aggravating circumstances and which are are mitigating, requirements not satisfied. If the Gregg state intends to advance some atten- penological goal by directing tion of the sentencing factors, to certain authority how can the specified or judge result, know what that is? As policy a direct death penalty verdicts will random rather than sporadic consistent. Different conclusions will be reached different juries or as to whether a judges specified factor is or aggravating mitigating.
For former 190.3 example, section lists as one of the fac- enumerated tors or not at the time of the offense of the capacity “[w]hether appreciate criminality of his or conduct to conform his conduct to the law requirements of as a result mental impaired (Subd. disease or the effects of intoxication.” Some au- (g).) sentencing thorities, factor, who find the evidence supports this come to the may Others, conclusion that this is a circumstance. mitigating considering times, the tenor of our consider this may a factor execution. favoring The is point sentencing that neither can determine whether its authority result, version is correct. As a situated will be identically defendants sentenced differently. The Legislature, directing attention sentencing authority to these factors but to indicate whether omitting their circumstance, or absence is a presence mitigating or aggravating set scheme ensures up statutory treatment. inequality none of the et
Significantly, upheld Gregg death statutes al. had the which flaw stat- part legislation. Georgia ute to ten deemed directed the attention factors it sentencing authority’s to be law the Florida enumerated “aggravating”;22 eight “aggravating” 165-166,
22Gregg, supra, pages 428 U.S. at page footnote 9 L.Ed.2d at 870].
354 circumstances;23 and in Texas the was in- and seven “mitigating” penalty ques- to each of the three statutory formed that answers “yes” sentence.24 would result in a death tions Florida, in The statutes Georgia, is another flaw. important
There find at the to sentencing authority and Texas all required factors enumerated statutorily aggravating trial that at least one of should be particular a decision that present justify Also, had to be in written the sentencing authority executed. findings by statute "has neither of these the California Unfortunately, form.25 provisions. auth- sentencing to ensure that the interrelated serve provisions
These They limits. statutory in fact within operated discretion has ority’s rele- the “particularly attention on authority’s focus the sentencing will not ensure that persons These sentencing provisions vant”26 factors. the state penological goals die unless the important be sentenced to for a imposed sentence will be will be advanced. The risk that a death extent, these provi- To this trivial or reason is lessened. impermissible requirement Finally, sions promote decision-making. consistency of a review meaningful judicial that the be in enables findings writing decision a death sentence. imposing 248-249, page at footnote 6 L.Ed.2d pages at 23Proffitt, supra, [49 921]. U.S. 24Jurek, 936-937]; pages see Adams L.Ed.2d at page at supra, 428 U.S. [49 581, 587, 590, 38, 41, page 46 L.Ed.2d footnote 448 U.S. [65 Texas 2521, 2524, 2526-2527], pages fn. S.Ct. returned, the may be death sentence that before a Georgia statute mandates 25The aggravat statutorily enumerated of ten find that at least one sentencing authority must or circumstance writing... aggravating “designate in ing must factors exists and at 428 U.S. (Gregg, supra, doubt.” beyond a reasonable which it found
circumstances 9.) 870], p. fn. p. 166 L.Ed.2d at [49 findings upon writing Florida, its authority ‘“set forth sentencing must In [statutory] ag (a) sufficient facts: is based as to the which the sentence of death [t]hat [statutory] insufficient (b) there are gravating circumstances exist...and [t]hat (Proffitt, su circumstances.’” outweigh aggravating mitigating circumstances... original.) 921-922], p. brackets at pra, 428 U.S. at L.Ed.2d [49 requires at the also procedure Texas differently, the Although structured somewhat aggravating statutorily specified factors. findings regard penalty phase special sentencing authority concerning the deliberate- questions required to answer certain and the actions, dangerousness, future of his probability ness of the defendant’s (Jurek, supra, 428 deceased. any provocation response his reasonableness of be- sentencing authority finds 936-937].) Only if the pp. p. 269 L.Ed.2d at U.S. at a death shall factors on all relevant against the defendant yond a reasonable doubt imposed. sentence be Stewart, (opn. of page L.Ed.2d at page 192 885] 26Gregg, supra, 428 U.S. Powell, Stevens, JJ.).
355 Frierson, In 142, 25 Cal.3d three People supra, justices of this court found no merit in an attack on these defects. procedural Two rea- First, sons were tendered in of their support conclusion. the justices 190.4, relied on (e), former section subdivision which provides for an automatic application for modification of a verdict whenever a has jury (25 returned a Richardson, death sentence. Cal.3d at p. (opn.
J.).) motion, In on the the trial ruling evidence, court must review the consider circumstances, the aggravating mitigating make its own independent determination as to the weight of the evidence supporting verdict, the jury’s findings and state on the record the reasons for its The three findings. in Frierson justices concluded that the proceed- ings on such a new trial motion were {ibid.) “roughly comparable” those in the scheme, Florida death penalty which was upheld in Prof- fitt.
The analogy the Florida statutes is just plain Florida, In wrong. the jury determination of penalty advisory the final only; decision as to punishment was to the trial given California, In judge. the situa tion is quite different. As noted, Justice Mosk has “under our statute with authority primary for responsibility fixing is the (Frierson, jury.” supra, (conc. Cal.3d at p. fn. 7 opn.).) ju role ry’s is not that of If advisor. there fact, were doubt as to this “section 190.3 declares no less than three times that in the penalty phase the trier of fact shall ‘determine’ the punishment to be inflicted.” {Ibid.) Further, the trial has no judge power to overturn a verdict jury of life imprisonment. short, In is the jury sentencing under authority the 1977 law. The United States Supreme Court’s cases “make clear that it is the sentencer’s discretion that must be channeled and guided clear, by objective, and specific standards.” (Godfrey, supra, 446 U.S. at p. 437 L.Ed.2d at p. 100 S.Ct. (conc. at p. 1769], italics original opn. Marshall, J.).)27
The second basis on which the Frierson plurality sought to overcome these objections was to point out that at the guilt phase of a trial capital must return a verdict of “true” on at least one allegation special circumstances before the (25 penalty phase commence. may Cal.3d 179.) at p. Since the existence of a special circumstance is one of procedures 27The called in the automatic new trial merely motion are those used reviewing “for any jury verdict on a motion for new insufficiency trial based on (Frierson, evidence.” supra, (conc. Mosk, Cal.3d at opn. J.).) fn. 7 This would only indicate judge fact that the found a upholding basis in the record for decision, the jury’s jury’s whatever the actual reasons. 190.3 and since enumerated in former section factors specifically guilt phase verdict on that allegation signed jury’s *82 for in findings writing constitutional need specific
jury foreperson, any was met. at
However, the to return a verdict the of sentencing authority duty check and against arbitrary capri- the does not serve as a guilt phase A which has found a cious at the penalty phase. jury decision-making be true is still entitled to return fully circumstance special allegation fact that a has returned a ver- a verdict of life imprisonment. jury in not that the phase way dict of “true” at the does guilt imply is this existence the circumstance one of reasons special jury’s of Indeed, truth this to die. the of particular finding sentencing the is at a time when the is specifi- of circumstance made special at verdict. not consider in its cally arriving instructed punishment (3d (Former 1970).) 17.43 ed. CALJIC No. the death legisla-
The trial level 1977 procedures provided by penalty defect; i.e., are procedures tion another there inadequate contain re- ensure the of is reliability” constitutionally “greater degree (Lockett, the 438 U.S. when death sentence is quired imposed. supra, C.J.).) at at Of p. opn. Burger, 604 L.Ed.2d of p. (plur. 989] [57 course, all mistaken sentences of it is eliminate possible error, er- death—there “is a of litigation margin representing always 525 ror in v. Randall 357 U.S. factfinding. ...” (Speiser 1460, 1472, 78 1332].) L.Ed.2d S.Ct. [2
Nevertheless, context, recog the Court has analogous Supreme an can and must decision-making constitutionally nized that mistakes in be the a burden of upon strong proof. reduced by imposing government Thus, has an interest of transcending one at stake party “[w]here of re a defendant his error is liberty—this margin value—as criminal duced him on the the burden party as to the of other process placing instance, first and a in the of producing sufficiency proof persuad the of the trial of his ing guilt beyond the factfinder at conclusion (Id., at at pp. p. 1472].) reasonable doubt.” 525-526 L.Ed.2d [2 Just the risks deprivation liberty justify placing of an erroneous must the of an burden of so risks heavy proof government, to establish con deprivation require government erroneous of life the exis both ultimate sanction and vincingly appropriateness tence of the circumstances which sanction aggravating upon
357 all, penalties” from all other is, after different “profoundly Death based. death, life and risk choice is between [that [the] “[w]hen is unac in a applied particular will be improperly death case] Four Eighth with commands incompatible ceptable (Lockett, at L.Ed.2d supra, p. teenth Amendments.” U.S. J.).) from a substan C. Far p. (plur. opn. Burger, imposing at 990] the 1977 penalty phase, tial burden of at proof upon government at How can silence legislative California statutes no burden all. impose deemed an to the constitutional “interest reli adequate response Florida, (Gardner at U.S. L.Ed.2d ability”? supra, *83 Stevens, J.).)28 of p. (plur. opn. 403]
Another which would enhance the safeguard any of death reliability a verdict would be that the requirement sentencing be unanimous jury to each circumstance which aggravating deems sufficient to a of impose sentence death. The 1977 law provision. contains no such Indeed, it does not even a of require majority jurors agree upon to the existence of such a factor. the constitutional Certainly, requirement of is not met which a reliability a law allows death sentence be by for imposed the combined reasons of all none of which could jurors, a garner vote. majority
If the death imposed, is to be it be penalty must done under system which ensures fair and consistent results at the trial court level. Since the old 1977 California statute fails to meet those essential require- ments, a of death judgment upon based it cannot stand. 28It is true that penalty the Florida death in upheld require scheme did not Proffitt
proof beyond a aggravating reasonable doubt either that the circumstances were true or However, Florida, that death was appropriate punishment. an in a judgment of death could not be circumstances. aggravating outweighed returned unless the mitigating circumstances (It interesting is given to note that one of the reasons California voters 1978 in passage Proposition favor particular 7 this difference be tween the 1977 statute and the law. proponents Proposition Florida The 7 stated: opposition “The why Well, aggravating can’t understand we included mitigating vs. cir provision cumstances in Prop. [any] first-year 7. law student could have told provision them this required by Supreme is U. S. Court. The old does law not meet unconstitutional, requirement might this leaving declared no pen us with death 7, (Cal. alty (Nov. 1978), at all!” Voters Pamp., Gen. Elec. argument rebuttal to 35.)) against Prop. p. Supreme directly has yet question Court proof, considered the of burden Indeed, capital either or other punishment recent case. in Lockett v. Proffitt Ohio, suggest the court seemed to that the issue of who should “bear risk of non- persuasion” (See open. was still 438 p. U.S. at fn. 16 L.Ed.2d at 992-993].) pp. issues, When the Supreme Court squarely addresses carefully these it should consid- Randall, and apply teachings er Speiser supra, proceeding U.S. in which a decision made as person to whether a live should or die. Review on
Proportionality Appeal California’s 1977 death penalty has legislation another serious flaw since there are inadequate for safeguards appellate review of a or judge jury’s decision to impose death. The United States Court has Supreme struck down death statutes which fail provide “meaning- (Roberts ful appellate review.” (Stanislaus), supra, U.S. L.Ed.2d at p. 983].) To be adequate, legislation must set up a
method which a “full by review of the factual basis” for the sentencing authority’s decision29 can which, be made “a court because of its statewide jurisdiction, fairness, can assure consistency, and rationality in the evenhanded operation of the state law.”30
The California Legislature failed to for such provide “proportionality review” in the 1977 An examination of the back- enacting legislation. ground of this legislative history establishes legislation conclusively that the omission was intentional and that the intended to Legislature exclude review from this state’s proportionality punishment law. capital
Two
developments prior to
consideration of the
Legislature’s
First,
1977 law are relevant.
this court had
consistently
repeatedly
held that
it had
power
“no
to review the exercise of the
or trial
jury’s
court’s discretion” which fixed the
for
murder.
penalty
capital
(People
(1951)
52,
also,
v. Odle
37 Cal.2d
55
P.2d
see
In re Ander
345];
[230
(1968)
613,
21,
son
69 Cal.2d
623
447
Cal.Rptr.
P.2d
[73
117]
therein.)
cases cited
this court was
on
oc
Although
“importuned
many
casions to exercise such a
power[,]
[u]niformly,
request
[was]
v.
56
rejected.”
Cal.Rptr.
Howk
Cal.2d
(People
[16
370,
In December
pen
of
this state’s
death
then-existing mandatory
laws were held unconstitutional because
violated the
alty
they
principles
(Rockwell
of
Soon Rockwell introduced bills, to reinstate the death Legislature One of these Senate penalty. (1977-1978 law, Sess.), Bill No. 155 Reg. was enacted into eventually the death now under creating penalty provisions consideration. bills, in the
Early consideration these Legislature’s hear- special was called ing to consider expert testimony question of what procedural provisions would be mandated in order to a constitu- pass (See tional death law. Constitutional Issues Relative to the (Jan. Death Penalty, Special Assem. Com. Hearing, on Crim. Justice 24, 1977).) An “outstanding group experts” called to testify. (See id., 1.) remarks of Hon. Kenneth L. Maddy, legislators were told at repeatedly that “the hearing absence Court Supreme in a proportionality statute. . .is to make it unconsti- enough [review] {Id., 13.) tutional.” at p. introduced,
As originally Senate Bill No. 155 did not include any statutory provision proportionality review. of the bill in Analyses both the Senate and the noted this omission Assembly and queried, “Wouldn’t the risk of unconstitutionality unduly in a statute high *85 like S.B. 155 (See without statewide review?” Bill proportionality Anal- (as ysis 24, Sen. Bill No. 155 1977) amended Mar. Assem. Com. by Justice, 7; on Crim. at see p. (as also Bill of Sen. Bill No. 155 Analysis 17, 1977) amended Feb. 6-8.) Sen. Com. on Judiciary, pp. 16, 1977,
On May an amendment was that proposed would have add- ed review to Senate Bill proportionality No. 155. The amendment read: “In taken any appeal (b) 1239, to subdivision pursuant of Section Supreme Court shall also consider the punishment to determine wheth- er the sentence was for factor imposed any arbitrary and whether the sentence of death is excessive or to the disproportionate penalty imposed cases, crime, in similar considering circumstances surrounding commission, its and the defendant. The Court Supreme is authorized to make rules any regarding keeping records or other mat- (2 ter necessary to fulfill the under this responsibility subdivision.” (1977-1978 Sess.) 3352.) Assem. J. Reg. p. amendment Bill proposed Senate No. 155 was rejected by 30,
vote of 44 to and the bill was enacted law with into no quickly pro- vision for review. proportionality
In of all light of these the conclusion developments, un- appears avoidable that the has not this court to Legislature empowered conduct stated, review. As one well known has proportionality authority “Gener- ally the rejection an amendment a bill that is subsequently [to indicates that does not intend the legislature bill enacted] (2A include the provisions embodied the rejected amendment.” Suth- erland, (4th 48.18, Statutory 1973) 224, Construction ed. fn. p. § omitted.)32 This rule of construction has been followed California for (See, Madrid v. Justice Court many years. (1975) e.g., Cal.App.3d 819, 825 Rich v. State Board Optometry Cal.Rptr. 348]; (1965) 235 Cal.App.2d see also Cal.Rptr. 512]; California Assn. v. Public Utilities Com. (1979) 24 Cal.3d 846 [157 Mfrs. 676, 598 P.2d 836].)
Nevertheless,
who addressed this issue in Frierson
the three
justices
decided to “‘read into’ the 1977 law” the
requisite provisions
propor
review, since those
were “unable to discern” a clear
tionality
justices
(Frierson,
legislative intent to
such review.
25 Cal. 3d at
supra,
reject
(lead
Richardson, J.).)
This conclusion can be reached
opn.
only by
established rules
ignoring legislative history
violating long
cit.
(Sutherland,
When the
op.
supra.)
statutory
Legis
construction.
lature
the amendment
to insert
review into
rejected
proportionality
Senate Bill No.
it knew
this court had for
held it
years
had no
to review a
exercise of discretion
power
sentencing authority’s
sentence; (2)
which
five months
to the
imposed
prior
a death
only
amendment,
vote on the
this court had held that
proposed
proportional
review was a matter of
concern” and that for this
ity
purely “legislative
court to read such a
into a death
would
provision
penalty legislation
”33;
ex
“invade the
that constitutional
legislative province...
*86
the probable
and the
own staffs had informed them of
perts
legislators’
to be consti
need for such a
in the bill itself for
provision
legislation
circumstances,
it is inconceivable that anyone
tutional. In
of these
light
rejected
proportionality
could conclude that when the Legislature
already
exception
is
to this rule when “the bill in substance
includes those
32There
an
(Ibid.)
rejected
Obviously,
exception
amendment.
no such
provisions” contained in the
Bill No. 155.
applicable
is
to Senate
33Rockwell, supra,
page
In supra, legisla review into inserting proportionality militated our which against have to would not only it. The court did not provide tion that it would and criteria” but necessary procedures to devise the “attempt constitutionality on the having pass objectively “be in the position (Id. 445.) at p. own procedures design.” [its] nar- are borne out The fears these considerations underlying the lead opinion review suggested by row of the scope proportionality wishes defy Legislature’s Frierson. Even if this court could properly review, the kind of review which the three concerning proportionality undertake is under federal consti- inadequate Frierson vowed to justices tutional standards. from In re 8 Cal. 3d
Quoting Lynch 217, 503 P.2d case et al. and on Gregg relying solely predating 921]—a in Frierson defined pro the California Constitution—the three justices review as an to “determine whether the portionality obligation it ‘is so to the crime for which it is inflicted that disproportionate shocks the and offends fundamental notions of human digni conscience (25 Frierson.) Cal.3d at added in This test of ty.’” p. emphasis It focuses between proportionality too narrow. proportionality and the crime without to “determine wheth punishment attempting er it is to other sentences for similar crimes.” proportional imposed p. (opn. 428 U.S. at L.Ed.2d at of Stew (Gregg, supra, p. 891] art, Powell, Stevens, JJ.).)35 justices pointed 34The three out Supreme Frierson that the United States Court upheld has sentencing procedures or denied review of the death appel in states where late proportionality courts have undertaken review in the absence of express However, (See 182.) authorization. p. cases cited at 25 Cal.3d at in none the cited adopted cases is there indication that other state proportionality courts have re contrary view in the legislative intent. face of majority opinion, suggested 35In the it is only por that this writer has focused on one
tion of proportionality ignoring the Frierson discussion of “express review ante, prongs Lynch (Maj. reference” to the second and third at three-part opn., test. 317.) p. suggest With all respect, my colleagues carefully due I read their own Frierson, previous opinion. three-prong Lynch In test of is set forth and then dis language—“not missed with this disproportionality may all of these tests of appropriate reviewing particular (25 a sentence of death in a case....” Cal.3d at 183.) why hedged The reason opinion prongs the lead in Frierson on the second and third *87 This is articulation of a deficiency compounded by wholly subjec- tive standard a death sentence the sentence disproportionate: for finding in of the crime. Such a standard must “shock the conscience” light for adequate determining leaves the court without appellate guidance Moreover, sentence. the stan- of a death proportionality particular unreachable, since dard to be former section 190.2 appears virtually a serious crimes—first mur- permits degree death sentence only very It is difficult ders committed under circumstances.” to believe “special in such imposed persons death sentences convicted of reviewing crimes, a this will find the sentence so excessive as to court majority their sense of human Realisti- shock their conscience or offend dignity. the kind of review” described opinion lead cally, “proportionality Frierson at best an ritual. empty Clearly, review was not meant to be an proportionality sub- entirely Rather, or exercise. it was jective perfunctory designed provide check on the arbitrariness of significant judges juries by assuring the state in the infliction consistency throughout of death sentences. Frierson, Under the view review does suggested proportionality include this essential function. comparative
It also bears that this court is not noting presently equipped per- form review. While this court can meaningful proportionality monitor cases in which those a death sentence is it cannot account for imposed, cases in which a returns a verdict life sentencing authority imprison- Thus, ment. automatic reviewed for every appeal “proportionality” can sentence to other cases wherein death has been only compared No matter how life sentences be returned at imposed. frequently may offenders, the trial level for similar crimes and similar all death sen- will tences to this court to be consistent. appear appellate test, Lynch prong compare In second of the the court must of the test is evident. comparison crimes.” The third test involves a between capital case with “more serious “punishments prescribed sentence handed down in California and for the the death {Ibid.) jurisdictions....” problem here is that there are no same offense in other Further, capital proportional- crimes” than murder. it is irrelevant to our “more serious ity “punishments prescribed to know what for the same offense review function [are] relevant, jurisdictions impossi- were it is jurisdictions.” Even if the laws of other other imposed punishments actually such are in those ble for this court to know how often jurisdictions. only prove inappropriateness serves Today’s attempt to buttress Frierson in a proportionality of a death sentence trying apply Lynch question to the particular case. *88 even if Finally, this court could limit its re- properly proportionality view decided, to the record in the individual appeal being review would be The in California meaningless. sentencing is under authority no obligation on the record of its put reasons for imposing Further, death it penalty. may impose death on the basis of factors not result, enumerated in specifically former section 190.3. As a this court has no of whether way determining death sentence any given was in or based on arbitrary caprice. entire scheme for proportional- fact review ity set the lead up by in Frierson is mere opinion illusion. Frierson,
In the lead this court’s “con- opinion acknowledged supra, derived to assess the of a stitutionally responsibility proportionality (25 183.) Cal. 3d at this court’s particular punishment....” p. Today, opinion states “we stand to afford whatever majority fully prepared kind of review be held mandated proportionality may constitutionally ante, 317.) court.” state- high opn., Despite these (Maj. resolve, ments of have not undertaken such review as high majority to the present case.
Perhaps reason for this omission is that such a review is impossi- ble under this statute because there is no of way knowing this why jury sentenced this man to young die. There is no of way what knowing ag- gravating circumstances the jurors actually relied on in their decision to impose death. There is no of which way knowing circumstances the jury believed were and which aggravating deemed they There is mitigating. no way which of knowing the 10 enumerated factors in former sec- tion 190.3 were found to be true. There is no way whether knowing all the jurors agreed on the existence of the same circum- aggravating stance(s) or whether a few only agreed any particular one. There is no way whether knowing found jury each circum- aggravating stance relied on to have been evidence, established aby scintilla of evidence, preponderance of evidence, clear and convincing or by proof beyond a reasonable doubt. And there is no way knowing whether this jury’s decision was consistent with those of other under juries like short, circumstances. In this court knows more about the nothing actual reasons why this chose to condemn appellant to death than it would have known under the invalid law. pre-Furman court,
This in order to uphold constitutionality a defective statute, death penalty has set an up scheme that illusory resembles the work of a prestidigitator more than that of a court of law.
III *89 Over the much has been written about the death years, penalty. Peo- ple differ as its a deterrent to crime. philosophically efficacy Indeed, there are few issues that so much heat while generate shedding so little no issue is so light. Perhaps Unfortunate- emotionally charged. ly, political this atmosphere issue creates is more conducive to Thus, sensationalism and than it is to in the exploitation understanding. past some have not been above advance their politicians attempting careers by on the this issue playing strong feelings engenders.36 differ- that emotional this court must
Against backdrop, play very ent role. Our is to review record job carefully precisely law so that a fair and result is apply principles just constitutional of which a of death has been reached each and case in every judgment on this The of this state that pronounced. people placed responsibility VI, when in article sec- court enacted the found they provision presently tion 11 of the California Constitution. tasks must be two difficult our responsibility,
To properly discharge the record below First, review this court must rigorously undertaken. must not hesitate to is this court present, If substantive error for error. Second, it. to perform and we are duty-bound reverse. That is our job, federal California’s statutes adequacy this court must measure as articulated the death penalty, standards regarding constitutional decisions have Court. Those States Supreme the decisions of the United it the death penalty, imposes that when a state set forth rules to ensure they of whether procedure. Regardless with fair consistently is done not, the citizens I am certain death or penalty favor the personally of that the imposition to uphold want this court this state would not requirements meet the essential if statute did not our Court has posited. States Supreme United recently 36One commentator on the California scene made the observation that there
currently groups cranking up public opinion campaign are who to be to force “seem that, goes Supreme penalty.” the California Court to the death He on to note validate campaigners saying, you couple if don’t let a simply, are said this: “[w]hat [H] chamber, gas going you regard guys be knocked off in the we’re to throw out of office That, say, way your opinion less of the law.’ I is a hell of a to establish of the law or [¶] being Executing (Flynn, of whether a human lives or dies.” rules for determination Unsolvable, Wilborn, 14, 1980); (May see also Prosecutor Plans S. F. Examiner 11, 1980) Register (June Penalty, Recall Death Santa Ana Ruling Drive Over on A1, A10; Rennert, Change,' (Apr. Bee pp. 'No Executions Till Courts Sacramento A4; Row, 1980) F. Examiner p. justice deaths on Death S. State doesn’t foresee 11, 1980) 8.) (Apr. follow the office to take an oath of this court all justices us, views before our issues various may disagree law. we Although demands the rigorous with consistently conscientiously are reached more conscientious judgment is our exercise of our Nowhere oaths. death has sanction of in which the ultimate than in those cases critical imposed. been this I think it imperative
It is these reasons that precisely objec- this issue and away overlay surrounding court the emotional strip *90 trial law. applicable the record of this and fairly review tively so, cannot stand. am convinced that this conviction done I Having to a statute that penalty The failure of the write death Legislature treatment; sets forth clear that assure relative guidelines equality meaningful failure to give sentencing authority Legislature discretion; its the failure of the Legis- standards to in exercising follow that the or focuses judge lature to that ensure provide procedures considerations; the failure sentencing on the important permissible set out mechanism that ensure that reli- to would Legislature death is the sentence in a proper able determination has been made that case; this court Legislature give and the failure particular review of a sentence of meaningful the means or power engage death, make it the 1977 death statute. impossible uphold the failure
These failures of the are Legislature only compounded by his trial client. state-appointed attorney effectively represent entered below should reversed. Consequently, judgment Tobriner, J., concurred
Appellant’s petition for a was denied December 1980. rehearing Bird, J., Mosk, J., Tobriner, J., C. were of the that the opinion peti- tion be granted. should