*1 Crim. June [No. S004767. No. 26407. 1992.] PEOPLE,
THE Plaintiff Respondent, LIVADITIS,
STEVEN Appellant.
Counsel Laethem, Defender, Fern M. State Public under Court of appointment Panton, Defender, Appeal, Adrian K. Chief Assistant State Public W. Dean Freeman, Marino, Patricia L. Reber and Richard D. State Public Deputy Defenders, for Defendant and Appellant.
Daniel General, Williamson, E. Lungren, Attorney George Chief Assistant General, Pollack, Attorney Carol Wendelin Acting Attorney Assistant Gen- eral, Susan Lee General, Frierson and John Gorey, R. Deputy Attorneys Plaintiff and Respondent.
Opinion ARABIAN, J. June defendant On took five hostages during a of robbery the Cleef Van & store Arpéis jewelry on Rodeo Drive in Beverly one of the thirteen he stabbed the next tension-filled hours During Hills. death, in the end of that head. At and shot a second the hostages fatally time, the area with the him as he tried to flee the were able to capture police killed accidentally third was three a surviving hostages. Tragically, hostage in confusion. police ensuing law, pleaded guilty In filed under the death defendant penalty a case Smith, Ann and Heilperin, Hugh first murder William degree of Code, 211); (§ of three (Pen. 187)1; robbery Skinner to five counts § second (§ (a)); and to count of degree counts of subd. one kidnapping (§ 459). He murder allegations admitted circumstance burglary special to two of the murders the commission and as during robbery burglary 190.2, 190.2, (§ (§ (a)(3)). He (a)(17)), murder subd. also subd. and multiple weapons allegations. admitted certain enhancement trial, The trial After a death penalty jury imposed penalty. 190.4, (e)), (§ subd. and denied the automatic motion to verdict modify (§ We affirm. This is judgment appeal entered a death. automatic. Facts I. Crime
A. The & as a.m. on June Van Cleef for business usual at 10 Arpéis opened briefcase, later, A time entered intent on 1986. short carrying Smith, and A murder victim three robbing the store. William security guard, and clerks—murder Ann and Skinner one of Heilperin Hugh sales victims the main sales area. surviving hostages, Carol Lambert—were inside watches, him the two entered Heilperin Defendant asked to show some and watch adjoining boutique. later, screamed, A few don’t hurt minutes “Please Heilperin yelled, me.” Defendant then into the at gunpoint. forced her back main sales room Smith, He told not to tried to draw his everybody move. security guard, firearm, own but him disarmed defendant forced to his knees and him. clerk, Robert heard and ran Taylor, scream shipping Heilperin’s sales room from office the rear. and ordered Taylor, Defendant saw revolver, him to enter the room. Taylor, seeing complied. Every- defendant’s one building else heard robbery escaped. progress, alerted, police arrived at the scene. quickly
A standoff ensued. The Defendant was police building. surrounded inside with five the three Skinner and hostages, sales clerks (Heilperin, unspecified
1Further statutory references are to this code. *8 Lambert), and the clerk security guard (Smith), shipping (Taylor). hours. crisis was not to be resolved for another 13 He then ordered Defendant ordered into the watch hostages boutique. Taylor. them lie face on the Lambert and down floor for except bind their hands forced these two to bind the other ankles and also hostages’ their had his brought behind backs with rolls defendant plastic tape finished, fill When them to his briefcase they briefcase. defendant ordered with watches from the store. he by
Defendant started to leave building Taylor, but accompanied observed outside and returned watch He police boutique. to the appeared angry Taylor to be that the were He forced Lambert to police present. tape others, Next, dial, like the he her From except sitting position. had 911. that location of many telephone followed first conversations between the police. “John,” leave,
Defendant said his name and demanded that police news, be he on the put television and that he be with provided television set. He He threatened to “execute these at a time.” people one “old, weak, described Smith an as man.” At after this fragile point some conversation, defendant also bound Lambert the tape.
Defendant turned his attention to Smith. He told Smith that he old was too to be a security guard that his Smith gun was “outdated.” responded, “You think are a you big man with that He gun.” This defendant. angered much, told Smith that he talked too retrieved a knife hunting from his briefcase, and told the others to look He then in the away. stabbed Smith middle of the back with the knife. Blood from the wound onto spurted twice, shoulders, face. Taylor’s Smith gasped for breath tried onto to rise then down, slumped down. Still bound and he lying face bled to death presence of the other hostages, who powerless to assist him. Defendant coat; covered and the knife body with a the body remained that until way the incident was over.
Defendant told a for correspondent United Press tele- International by phone that had only intended to rob the store and He he had leave. said stabbed Smith in the back because Smith did follow orders and “kept He felt talking.” “no remorse” it stabbing; was an “appropriate thing to do time.” Defendant also threatened to shoot the remaining hostages if the police “storm place,” said he “have might soon to execute somebody else” if his “demands not met.” He allowed some of [were] hostages speak to He correspondent. ended the conversation telling the correspondent, “have a nice day.” *9 lie down next to Smith’s body defendant forced to point, Heilperin
At one her had to on rear” the wall. Since she was still she taped, “scoot[] and face screamed at her because she had angry Defendant seemed with comply. to half He Mouth Annie.” About an “Big called her robbery. the outset wall, the during early face the Heilperin after defendant forced to hour conversation, afternoon, he Channel 5. spoke During with a from person over, minute,” listener, “Quiet, put and “walked just defendant told killed instantly. Annie’s was Heilperin to head and gun pulled trigger.” conversation, that his telling the listener telephone Defendant resumed his had gun “misfired.” if he he killed attitude as was changed,
After defendant’s Heilperin, later, He About 45 minutes he body. relieved her. covered the by shooting had killed. Around this Skinner tell the been police Heilperin to that allowed time, chairs to act as a defendant tied Skinner and two Taylor together in case tried to enter the boutique. “shield” anyone time, chance of hostages’ only surviving this By Taylor thought Skinner devised building. the ordeal was for somehow to leave everyone inside cloth were available pieces Several used plan. displays into together Skinner to sew the they pieces store. defendant suggested blanket, hostages as a sort of then use the blanket to cover defendant and to who was a left the The would not be able they distinguish store. police who defendant. hostage They was the and thus could shoot gunman, drive safely nearby away. then walk to a car store and could owned Skinner had the make defendant keys happy, to the car. Taylor Attempting defendant take instead suggested jewelry also more items of expensive the watches already had taken. went room and agreed suggestions. to the Skinner to another a ball point collected more for defendant. Lambert used expensive jewelry and some from defendant’s briefcase to stitch the cloth pen string pieces She in the it three or together. job evening; started the took about four early hours. satisfaction,
When blanket was finished to defendant’s he and the three would be tied surviving hostages under it. practiced walking hostages at the waist with defendant in the middle. Defendant said that when together car, drive, to the they got Lambert would and defendant would be seat, middle of the with Skinner Taylor front to his was be right. supposed in the middle of from rear. The the back seat act as a shield four for a no practiced hurry blanket of hours. Defendant couple time, because he wanted wait until it During dark. this got more into the placed jewelry briefcase. the hostages together the time came to leave. Defendant tied
Eventually, waist, they in the Around 11:30 got p.m., around the hands middle. *10 blanket, the out store in covered by improvised walked of the this formation and the carried his briefcase the gun. which reached to ground. out, big had loose and On the Skinner remove some stones way briefcase, into he from a safe. Since defendant could not his told rings get pocket. Skinner to this into Skinner’s place jewelry Outside, the the four to the lot where car was nearby walked parking hostages located. Skinner and that and Taylor yelled they pleaded the in the “murmuring” no one to shoot them. could hear Taylor people if background. hostages Defendant threatened to kill the the tried police them. stop meantime,
In the law enforcement members of the personnel, including Angeles County Los Sheriff’s had the had Department, They secured area. decided not to allow in a the vehicle and thus group get away “go mobile.” deputies Two were armed with devic- bangs”—“diversion “flash that like go off when “large a mechanism ignited by pin e[s]” flrecracker[s]” —and were instructed to throw them the when at it reached the car. group Johnson, team, Sheriff Deputy George the sharpshooter with SWAT was stationed on the seventh level of a nearby parking structure.
The law enforcement officials had erroneously been informed that both of fact, Black, the male (In were Black. hostages Skinner Taylor is but was White.) Thus, The error was never corrected. was Deputy Johnson informed that only the White inmale was the To group gunman. compound the confusion, Skinner’s appearance generally sketchy matched description gunman that was available. car,
When the under group the blanket reached the deputies two threw defendant, as flash-bangs planned. They knocked exploded. blast and Lambert Taylor under the ground blanket. Skinner separated was later, from A others. moment Skinner to the defendant pointed yelled, “Here he is.”
Deputy Johnson was watching these events through of his rifle. scope He saw blast “spin” one person away from the others and onto his back. Deputy Johnson’s view was obscured briefly smoke. When the smoke cleared, he observed that the person from was a separated others White male similar in appearance to description of the gunman. this Believing person to be gunman, Deputy in” Johnson “locked him “like a heat seeking He missile.” focused cross hairs of rifle on the center scope like “shiny object,” something chest. He heard his spotter say
of the man’s who had been Then he saw the yell person and heard someone else “gun.” In the blanket. rise toward the underneath point group start to separated fact, Skinner toward defendant. it was the hostage pointing he cross hairs of the thus scope; to concentrate on the Johnson had
Deputy he only the man’s but could perceive not look hands closely could under the blanket. Johnson convinced toward pointed group as killing hostages he was to start gunman, “going Skinner was the this, man ‘terminated” the To Johnson prevent Deputy he stated would.” the chest. by single through shot *11 later, blanket, and other lifted the Deputy
A moment when officers commented, he “Where (defendant), White male Johnson could see another but, by he He learned that he had shot gunman did mistake, come from?” soon one Skinner died of wound. hostages. of and arrested defend- surviving hostages The officers rescued the quickly was two cars. It Defendant’s was found on between gun ground ant. cocked, fire. Nearby to ready with .357 and was magnum loaded six bullets loader,” knife and a device used quickly were a switchblade a “speedy were found The of and Smith Heilperin reload the covered bodies gun. in Smith’s inside the store. The knife was still stuck they where had been left briefcase, in were another jewelry, Inside defendant’s addition back. speedy loader, twine, gloves. and a tape, pair two some white rolls arrest, Smith Smith After his because police defendant told stabbed to kill him and defendant felt he had antagonistic”; had been “uncooperative “knife in like just He that the went “to control situation.” said keep bonds, had his and stabbing, appeared butter.” After the Smith strained at Smith, it at his his and got gun pointed close to hands. Defendant freeing him if he It not necessary. to shoot free. was intending got kill felt he had to Defendant said he shot because “he Heilperin in taken serious- hostage prove another order to that his demands should be with him and ly.” He selected she had been uncooperative because Heilperin robbery. created at screaming had situation the outset of hostage up Defendant also he was and his had been to tie plan only said sorry, he was regret take the He when employees, jewelry, expressed and leave. survivors, killed. erroneously told one of the had been Taylor, B. Other Crimes in
The instances 1984 and prosecution presented prior evidence of three On 1985 which defendant in Las Nevada. forcibly Vegas, resisted arrest occasion, the first defendant in a a officer was to handcuff attempting police crowded store after defendant had to sell two attempted computers computer He way that had been stolen in a recent Defendant fled. burglary. pushed officers, door, knocked sliding glass two broke down through through customers, store after off some store’s front door escaped breaking occasion, hinges. its when an On second defendant also resisted officer occasion, tried to handcuff him. On the third defendant was arrested for foot, He fled on and then kicked and suspected possession cocaine. resisted the It officers when he was took several officers eventually captured. him. subdue 2, 1986, February
On jewelry Vegas defendant robbed store Las He forced two lie on the their gunpoint. employees taped floor He hands feet. threatened to kill the them employees, verbally, abused and kicked one of them He repeatedly. eventually escaped jewelry $400,000 retail, $177,555 worth over wholesale. identified employees defendant as the gunman, and his found on a roll of palm tape print recovered from store. Nevada,
Defendant had two prior felony convictions one each *12 burglary and possession of stolen property.
C. Evidence Defense Defendant’s mother and other family members testified about defendant’s childhood, some coming from Greece to The marriage do so. of defendant’s Greece, parents, both natives of had been and arranged, was never a success. The father abused the family, including and his three older His mother siblings. divorced his father when years defendant was five old. Thereafter, the in family generally lived often on welfare. poverty, relying child, Defendant was a good and was of his supportive mother and For a while family. defendant lived at a Greek Orthodox Church orphanage, where lived in unhappy. also Greece for a few years. Later, he inwas the United States Army. Defendant’s brother testified that defendant became involved with the kind of wrong friends Las Vegas, thereby got into trouble. The close, members family testified that the that family was all loved they
defendant, and that they wanted him to live.
II. Discussion
A. Jury Selection Issues
Defendant contends the court erred in excusing for cause one prospective juror because of her views on the death The penalty. applicable for juror excuse may prospective trial court
law is settled. would or substan prevent views on juror’s capital punishment cause if that her her as a accordance juror of duties tially performance impair 412, 424 U.S. (Wainwright v. Witt instructions and her oath. 841, 851-852, 844]; (1991) Cooper 105 S.Ct. L.Ed.2d if 865].) “On appeal, prospective P.2d 809 inferences, i.e., of multiple equivocal, capable are juror’s responses mind is state juror’s of that of the trial court’s determination conflicting, (Cooper, supra, binding.” dire, she at issue stated that juror the voir
Early prospective life mind” to for have made vote already up had a “predisposition [her] might revealed she Further parole. questioning without possibility had older defendant who previously vote the death for an penalty be ability said her views would “impair committed murder. She [her] At involve a murderer. repeat in a case like this did not totally objective” case in this she not vote for the death penalty one she stated that could point, dire, of the voir absence murder. Other given prior portions counsel, were equiv more defense particularly responses questions ocal, lack prior her age but final statement was that defendant’s now, if I had to here sitting right murder “makes me feel as though right vote, my And that what I the death is giving penalty. would vote for is.” feeling “to was merely predisposed
Defendant contends that the juror prospective age factors” of assign average weight mitigating than greater *13 murder, alone did not a and that previous absence of such predisposition 648, (People (1990) her Kaurish 52 Cal.3d 699 [276 warrant excusal. 788, However, statements, 278].) although equivo- 802 P.2d these cal, substantially her prevent the court’s that views would support finding the of her duties as a impair performance juror. the may penalty
The fact that tne have considered death prospective juror in other cases did not her excusal. court prevent may properly also “[A] excuse the death juror automatically against a who would vote prospective him, the in the case to consider penalty regardless willingness before of (1983) death in 35 Cal.3d other cases.” v. Fields penalty 680]; People accord v. Pinholster 357-358 673 P.2d 571].) That was Cal.4th 824 P.2d Cal.Rptr.2d 917-918 [4 situation indicated a Although juror willingness here. prospective (a consider the death facts the case prior under penalty applicable murder), duty trial her court found that her properly ability perform Pinholster, (See was substantially People this case. also impaired juror 916-918 court excused a properly prospective Cal.4th pp. [trial in burglary-murder indicated to consider the death inability penalty who an case, situations].) even could it in consider other though juror
Defendant the district used attorney peremptory also contends improperly exclude reservations about the challenges jurors who potential expressed contention, continue to death We have penalty. repeatedly rejected do so. v. Edwards (E.g., Cal.Rptr.2d 436].) Physical During B. Restraint Trial of Defendant trial him contends the erred ordering prejudicially restrained on physically during two occasions the trial.
1. The Facts selection, During jury deputy attorney district notified the court that the sheriff’s received had information from a confidential infor- department mant regarding possible escape attempt by with outside help. Because of this information defendant’s of she history escape attempts, that defendant shackled an requested leg be with “unobtrusive” brace to be worn under his Defense counsel claimed pants. objected, and that brace was noticeable and uncomfortable. After from counsel and hearing defense sheriff, deputy court ordered leg day brace worn for the rest of the a final pending decision that evening.
theAt end selection jury another proceedings day, hearing was Over held. objection of the district the court decided that attorney, increased security brace leg would not ordered it necessary, be removed. brace leg was thus worn only during day jury one selection. Nothing the record suggests any prospective observed brace. juror trial, During the evidence portion the district attorney requested *14 defendant be restrained in some fashion of the during two testimony surviving She hostages. said that Carol Lambert her “she told that will not come into unless he is testify She is that fearful of [restrained]. Both him.” were still “in hostages because of the The therapy” crime. district said that attorney although Robert had also Taylor defend- requested restrained, ant be she could talk him into without the testifying restraints. Lambert, however, would “absolutely not come into courtroom unless is somehow restrained.” The defense objected there was no necessity for the restraint. The court that “a responded person who has gone through
774 We have that don’t occur to an ordinary person. has ideas trauma particular necessity because and that there is no “obviously to that feeling”; respect of mind of a frame subjective but we are with a security, dealing there is so, therefore, we to have got trauma through woman who has terrible gone but under to do might objectively thing humor her. It not be circumstances, I think that.” ought we do that of only, of Lambert not during testimony
The court ordered that in a that would not be chair fashion defendant be handcuffed Taylor, restrained during physically visible Defendant was not otherwise jury. the trial. Discussion
2. brace for the one ordering leg the court erred in Defendant contends of handcuffing during testimony and the day during jury selection We disagree. Lambert. on the impact settled prejudicial
It is that because its potentially as a last resort and jury, shackling only upon should be ordered only (1990) v. (People of a manifest need for such restraints. showing Stankewitz 72, 817, 23]; People Duran 51 P.2d v. Cal.Rptr. Cal.3d 94-95 793 1322, 282, 618, 545 P.2d 90 (1976) Cal.Rptr. 16 Cal.3d 290-291 [127 1.) although as possible, A.L.R.3d restraints should be as “unobtrusive Any Duran, supra, v. (People as as under the effective circumstances.” necessary make the trial court’s 16 Cal.3d at these restrictions p. Although Cox 53 (People order narrow” v. “relatively discretion to restraints 351]), will be ruling Cal.3d 651 P.2d the court’s manifest of that discretion. upheld showing on absent a of a abuse appeal Stankewitz, (People supra, v. Cal.3d The
The court did its case. information not abuse discretion this with defendant’s regarding possible escape plans, history together a sufficient brace. prior escape attempts, temporary leg was basis v. Sheldon 48 Cal.3d 945-946 [258 1330].) P.2d It is be the restraint based on conduct necessary (6th 1973) at the Cir. (Kennedy time of trial. v. Cardwell 101, 111.)2 F.2d make unobtru trial court the restraint as attempted sive it as it removed as was satisfied possible, ordered as soon promptly Moreover, there it it unnecessary. sufficient courtroom to make security Duran, 2In we supra, leading shackling, case on California Cardwell, relied heavily Kennedy its specifically 487 F.2d commended *15 (16 “enlightening” analysis. p. 13.) at Cal.3d fn. the learn of defendant’s jury escape attempts. inevitable that would prior was Cardwell, 111.) 487 F.2d (Kennedy supra, v. at Evidence p. prior crime, the it evidence of the would make coupled escape attempts, brace, if leg to the was a risk. The even security obvious defendant jury (the suggest more record does not jurors noticed one or prospective the it), did have had effect under any prejudicial notice would little circumstances. during
Defendant has the regarding handcuffing also not shown error restraint not Although of former Lambert. the was testimony hostage still a of courtroom there was sufficient imposed security, reasons had showing of need to the court’s of discretion. Defendant support exercise hours, for 13 time he harrowing during terrorized Lambert which cold murdered while bloodedly lay helpless other bound she on hostages next Her floor to them. fear at trial was understandable. Under these circumstances, the trial alleviate fear carefully court’s limited this attempt handcuffs, time, by requiring to the worn for a short jury only invisible within its discretion. Defendant also contends court erred not cautioning jury sua that the sponte restraints should not influence its determination. “How ever, view, when the restraints are concealed from the this instruction jury’s should not be invite given unless defendant since it requested by might initial attention which restraints thus create would prejudice Duran, 292; otherwise be (People avoided.” v. supra, p. Cal.3d accord Cox, supra, 53 Cal.3d at counsel Although defense claimed noticeable, at trial that leg brace was the court and district attorney disagreed. record no any juror contains evidence that observed actually leg brace. There is no at all suggestion handcuffs notice circumstances, Under able. defendant have should caution requested Cox, if ary instruction he wanted it. 53 Cal.3d at p. C. Evidence Prior Unadjudicated Crimes of
Over objection, the court admitted evidence of the three instances arrest, which defendant forcibly resisted including evidence that on one of the occasions defendant had two an attempted sell stolen in computers earlier burglary, and that on another of the defendant occasions possessed what officer arresting believed was cocaine.3 Evidence of the circum- stances preceding the arrests was also admitted. The theft and possession the computers underlay defendant’s felony possession convictions for stolen property burglary. 3Although cocaine, did specifically object to evidence regarding we general
believe that defendant’s objections grounds argued appeal on the to all this *16 of stolen evidence the regarding possession
Defendant that the contends cocaine, surrounding circumstances and the and the suspected property arrests, it did show “criminal should have been admitted because not not use of force which use or or activity attempted involved the by violence” under or the to use force or implied violence threat express 190.3, 190.3, (c), factor (b). He further that section argues section factor conviction,” does not permit which allows evidence of any “prior felony evidence of facts conviction. underlying computers correct that evidence regarding is convic surrounding felony not admissible to show the circumstances conviction,” is admis felony, even of a nonviolent Any “prior felony tions. However, 190.3, (c). (c), the fact only under section factor under factor sible admissible, (See not of the crime. underlying of the conviction is facts v. Gates 43 Cal.3d felony facts conviction underlying contention 301] [“Defendant’s [that had the involved were have had merit convictions might inadmissible] conduct, limited strictly of such evidence is nonviolent since admission of the (c) in the Evidence original.].) subdivision of section 190.3.” Italics conviction, whether is accompanied by of criminal or not activity, facts 190.3, if (b), under involves only activity admissible section factor but 840; People (See People supra, 53 Cal.3d at Cooper, p. force or violence. P.2d v. McDowell 46 Cal.3d 567-568 [250 1060].) clear, the court did is not it
Although appears record completely the underlying believe the was entitled admit evidence of prosecution 190.3, (c). of the felony facts of convictions under factor Admission section error. The evidence of the solely evidence on this basis would have been was, of the and of the cocaine possession computers suspected stolen however, 190.3, (b). under section factor admissible 190.3, (b),
The not limited factor to show prosecution was under section reason, he then ing only defendant was arrested no and that apparent 190.3, (b), resisted to ‘criminal violently those arrests. “Section factor refers 840.) crimes.” at activity,’ specific Cooper, p. Therefore, crimes, “all crimes although activity specific must involve committed a continuous of criminal which includes during activity course force or violence be even if some may aggravation portions considered thereof, isolation, (Id. resisting be may nonviolent.” and the arrests batteries involved or violence. The force subsequent certainly evidence, overruled, objection satisfy contemporaneous which were sufficient Code, (Evid. rule. § *17 force and cocaine did not themselves involve possessions computers violence, defendant or but the arrests which leading were crimes to they resisted, criminal were course of thus the same “continuous part (Ibid.) crimes and which or The activity underlying includes force violence.” “were context to defendant’s circumstances admissible to surrounding give (1988) v. 46 (People violent of resistance. Keenan subsequent episode[s]” 550, 1081]; People Cal.3d 526 758 see also v. P.2d Cal.Rptr. [250 Pinholster, 1 at Cal.4th p. the ele
Defendant next contends the court erred in on instructing ments of both on officer. He that resisting battery argues arrest a peace arrest, alone, involve or vio resisting does force standing necessarily 190.3, however, (b), lence. Section factor does not require any specific violence, inherently crime force involve or actual criminal only activity (See People 840-841.) be violent. v. Cal.3d at Cooper, supra, 53 pp. He also argues might have found on each that he commit jury occasion crimes, ted both leading aggravat thus to impermissible counting double not, however, The ing factors. court did which evidence specify jury for the could be considered as each crime which it Nor was it was instructed. do so required (People (1992) absent a request. Hardy v. Cal.4th 205-206 Cal.Rptr.2d 781].) 825 P.2d The evidence [5 supported offense, finding that defendant force committed each requisite violence, at least The once. instructions proper.4 finally contends admission of the prior unadjudicated crimes denied him due process recognizes a reliable death He judgment. that we rejected these People contentions v. Balderas Cal.3d 144, 204-205 480], urges P.2d but us to overrule that (See decision. We decline to do so. 51 Cal.3d Medina 906-907 1282].)
D. Exclusion Evidence of Defense
Defendant’s mother testified that jail, when she visited defendant in he said he “very sorry” about what he did. The court sustained hearsay objection testimony, but the district did not it be attorney request examination, stricken. On redirect the mother testified without objection defendant “tells me how he sorry is.” uncle,
During examination of defendant’s the court sustained hearsay objections to questions about the after contents letters wrote crimes, 4It would have been improper instruct on the elements of such as possession of cocaine, stolen property and that did not actual themselves involve violence. Cooper, supra, The court did not do so.
arrest, whether the he made in and about allegedly jail, statements about for what did. “sorry” defendant is defendant has shown whether
Defense counsel asked defendant’s brother answered, so, an sustained “I much so.” very remorse. He believe it did not be request the district attorney to the but objection testimony, *18 stricken. the in sustaining erred
Defendant that the court argues prejudicially evidence was the time on he contends appeal, For the first objections. (Evid. rule hearsay to exception admissible under the state-of-mind Code, under the Eighth 1250), rights and that its exclusion violated § General Attorney The the federal Constitution. Fourteenth Amendments to for failure to has waived the contention that defendant preliminarily argues has not been that the matter agree make an of at trial. We proof offer preserved appeal. of the erroneous
An not reverse a because may judgment court appellate “substance, of the and relevance evidence unless the purpose, exclusion of asked, an by questions excluded evidence was made known to 354, Code, (a), italics (Evid. means.” subd. any offer of or other proof, by § added; People see v. Whitt However, two of 849].) did not make an offer of proof. were the objections before
the witnesses answered actually questions asked, answers, “other The with the together questions sustained. the excluded evidence means” which made it known to the court that This satisfied part offered to show remorse as a factor. mitigating However, defendant did not show Evidence 354 requirement. Code section rule, and did not hearsay came within an to the testimony exception otherwise, for that foundation by lay proper offer of attempt, proof exception. to the exception of has to alert the court proponent hearsay In
relied foundation. upon laying proper and has the burden of 240], the defendant Rodriguez (1969) 274 Cal.App.2d excluded was admissible as a statement argued hearsay certain appeal issue had not been against interest. The Court of found the penal Appeal the court sustained the properly preserved: objection, appellant’s “[A]fter trial counsel failed that he was the witness’s offering to inform the court an Code sections testimony as to the rule. Under Evidence exception hearsay made, 403 and if a the burden shifts to the hearsay objection is properly admissibility for its party offering hearsay lay foundation proper Witkin, Cal. (Id. under an to the see also 3 exception hearsay rule.” at p. Trial, 1986) (3d Evidence ed. Introduction of Evidence at § exclude untrust- admissibility designed conditions of hearsay], [of [“[T]he has are determined and the worthy hearsay, finally by judge, proponent Comment; .)”].) (Ev.C. burden them. . . . of proving fact regard Evidence Code provides preliminary section 405 When the existence of a governed “(a) determinations that section: by has the fact is the court shall indicate which preliminary disputed, party burden and the issue as proof evidence burden on the producing rule which The court shall implied of law under arises. by question determine the existence fact and shall preliminary or nonexistence of the admit or exclude the evidence the rule of law under proffered as required which the Law Comment to that question arises.” The Revision Commission section states that circumstances questions relating “to existence those that make the be received in evidence— hearsay sufficiently trustworthy to *19 the e.g., was declaration business spontaneous, voluntary, confession record are under trustworthy?” decided that section.
Defendant did not even statements were admissible suggest hearsay under exception, some did that the certainly qualified not show evidence Code, for (Evid. 1250.) admission under the state-of-mind This exception. § case, was in especially important this for if the issue had been properly court, presented to the it would have had discretion to exclude evidence. mind, Evidence of the declarant’s state even if otherwise admissible under 1250, Evidence Code “if section is the statement was made inadmissible under (Evid. circumstances such indicate as to its lack of trustworthiness.” Code, 1252.) § Edwards,
In People 818-821, v. 54 supra, Cal.3d the defense at pages sought to introduce a taped statement the defendant after his shortly arrest, and a notebook he rejected after crime. We compiled shortly evidence, defendant’s arguments that the though admissible hearsay, was under the state-of-mind to the rule. exception hearsay We found that postcrime statements were at made a time when the “had a defendant from, compelling motive to deceive and seek to exonerate himself or at least for,” to minimize his responsibility (Id. at There crimes. was thus “ ‘ample ground to defendant’s suspect motives and sincerity’ when made (Ibid., Whitt, statements.” People supra, v. quoting 51 Cal.3d at p. “The need situation, for is in cross-examination especially strong this fully warrants exclusion (Edwards, of the hearsay supra, evidence.” at p. 820; see also (1984) Harris 36 Cal.3d 69 [201 Broussard, 679 P.2d (plur. opn. by J.) defendant in 433] a criminal case [“A may not introduce hearsay evidence for the testifying while purpose avoiding cross-examination.”].)
780 case, if
In excluded the evidence given the trial court well have may this inwas jail awaiting question. to rule on the While opportunity telling sincerity trial he had a motive to claim remorse. His certainly The need cross- defense he was potential suspect. witnesses sorry would have had discretion examination was thus The court compelling. remorse, find in the and thus to exclude a lack of trustworthiness claims (1990) if Gordon 50 the evidence asked rule on the question. 251].) Since Cal.3d 1250-1251 [270 discretion, not before properly was never asked to exercise this the issue is us. that exclusion of the evidence violated contends “all ‘relevant
federal constitutional to have the sentencer consider right ” _ _, (1991) U.S. (Payne evidence.’ v. Tennessee mitigating 720, 733, 2597, 2606]; Carolina Skipper L.Ed.2d 111 S.Ct. v. South 1, 4, 1, 6, if 1669].) Even the contention 476 U.S. L.Ed.2d 106 S.Ct. us, explained before we would it on the merits. As properly reject Edwards, is People v. a state generally required (Id. admit state 837-838 pp. evidence form inadmissible under law. limited U.S. 95 Georgia under Green v. [discussing exception (60 makes 2150)].) reliability L.Ed.2d The same lack of S.Ct. makes them excludable under statements excludable under state law *20 federal Constitution. We rights.
Defendant also contends the violated his due rulings process if us. would on it were before reject properly also that claim the merits itself, Based the district during hostage his statements crisis upon crimes. Defendant that defendant was not remorseful for his attorney argued court’s him this evidence and rebutting contends the from rulings prevented from argument. we The did not Again, disagree. court prevent remorse, evidence evidence in the form of inadmis- presenting but only sible did not We also that the hearsay subject jury to cross-examination. note hear he was of defendant’s statement to the the arrest that shortly after police the crimes. no sorry for There was constitutional violation. Jury
E. Instruction Issues
1.
Instruction During Jury Selection
selection,
During jury
the court
summarized the
briefly
penalty phase
process to
Defendant contends
prospective jurors.
expla
nation to
of the
many
actually
several who
prospective jurors, including
jury,
served on the
defendant cites this
an example,
defective. As
see,
if
in
is that
juror:
to
“You
law
California
explanation
one
circumstances, then
aggravating
mitigating
you
circumstances
outweigh
in
contends this
must
a verdict of death in the
chamber.” Defendant
bring
gas
(1985)
v.
(See
Brown
improperly
mandatory
penalty.
People
death
imposed
637,
440],
revd. on other
Cal.3d
540-545
(1987)
L.Ed.2d
grounds sub nom.
v.
“The purpose
jurors,
of these comments was to
most of
give prospective
whom had
little or no
with courts
familiarity
general
penalty phase
death
penalty
particular,
trials
idea of the nature of
general
proceed
not,
be,
ing.
comments were not
a substitute
intended
and were
Edwards,
full
the end
(People
instructions at
of trial.”
2. on Mercy Instruction
Defendant contends the court had a sua sponte duty instruct the jury that it “had the absolute discretion exercise a life mercy impose sentence, even in the face of a that death was finding part appropri [its] have, however, ate.” We held repeatedly that the court required is instruct on mercy. v. Nicolaus 588-589 893]; P.2d Benson Cal.3d *21 827, 330; 808-809 Cal.Rptr. People (1989) [276 802 P.2d v. Andrews 49 200, 583, Cal.3d 285]; 227-228 People 776 P.2d v. Caro Cal.Rptr. [260 1035, (1988) 757, 46 Cal.3d 680].) 1067 Cal.Rptr. 761 P.2d [251 The court here instructed the to jury consider circumstance “any other crime, which extenuates even it gravity is not a though legal excuse for the crime and any or other sympathetic of defendant’s aspect character or that the record defendant offers as a a sentence basis for less death, than trial”; whether or not related to the offense for which he is on and character, “defendant’s background, and and history any devotion affection for his family they for him and him anything favorable to his life during or any other mitigating circumstance.” This instruction is even more expan- sive than the “catch-all” mitigation suggested People Easley instruction in v.
782 309, 813]; 858, 878, P.2d it (1983) 34 10 671 Cal.Rptr. Cal.3d footnote evidence advise the of the full of certainly jury range mitigating suffices to 53 (1991) v. (People Sully Nothing required. it could consider. more is 144, 1195, 163].) Cal.3d 1245-1246 812 P.2d Cal.Rptr. contention, suggested never to Contrary attorney to defendant’s district hand, On defense counsel that the other jury mercy. it could consider try mercy.” in to to show urged effect to show jury “try compassion, There was error. no Him Family Love
3. Instruction on Evidence for Defendant’s of devotion mitigation “any court instructed to consider jury him.” affection for family they [defendant’s] also tell the this request jury contends the court erred to refusing the return of a verdict evidence sufficient alone to warrant “may standing be life . disagree. . . .” We count the mechanically The court that it was not to jury instructed factors, “free value but that it was whatever moral assign sympathetic are deem that you to each and all the various factors you appropriate be jury weight This instructed the permitted correctly consider.” 1244-1245; (See People Sully, supra, 53 Cal.3d given any pp. factor. v. 273, People v. Duncan Cal.3d 977-979 [281 Brown, 131]; is fn. There no supra, P.2d v. 40 Cal.3d at People p. verdict of fact warrant a any might to tell the alone duty jury specific (1991) 1 Cal.Rptr.2d life. v. Breaux Cal.4th 316-317 [3 585]; Mickey People P.2d 696-698 [286 84]; Cooper, also 53 Cal.3d at [trial see impact give any regarding court refused to instruction properly specific of the verdict on the family].) defendant’s
4. to View With Caution Instruction Admissions Defendant’s arrest, After his Some of defendant talked about the crime to police. the statements which were admitted at trial were not recorded. statements, on these nonrecorded defendant contends
Focusing erred sua evidence of his oral admis failing sponte instruct *22 (See Beagle (1972) sions should 6 Cal.3d People be viewed caution. v. 1].) 456 P.2d We assumed that Cal.Rptr. previously 492 have [99 the to the same rule to trial as applies phase applies of a penalty capital guilt, trial of we have never the actually question. but addressed Pensinger (1991) 52 Cal.3d 1268 P.2d Cal.Rptr. 899] conceded, in a harmless error and [noting engaging solely that issue analysis]; People v. Morales 569 [257 trials, 244].) and guilt penalty Because of the differences between instruction at give cautionary we now hold that the court is to required the penalty only request. defense phase upon instructions,
In the CALJIC admonition is of a cautionary part pattern which “tends longer instruction also defines an admission as a statement that is phase, guilt already to At prove guilt.”5 penalty [the defendant’s] established. The relevance of the statements is only extrajudicial defendant’s evidence, as either or as evidence of aggravating mitigating guilt. particular Whether a statement is is often aggravating mitigating open interpretation. to Defendant’s this case contained elements that statements were he such his to killed undoubtedly aggravating, why as statements as Smith and Other statements were such as his Heilperin. arguably mitigating, he statements that was he had to take sorry hostages, and that not intended and his when expression regret of told that had been erroneously Taylor Indeed, killed. virtually at the outset his of defense argument jury, this, counsel stressed In defendant’s of it is far expressions light remorse.6 from clear that defendant would benefit from an instruction that his oral admissions should be viewed with caution.
In 413], Vega (1990) Cal.App.3d case, noncapital giving defendant contended the trial erred in court CALJIC No. 2.71. argued He that his and statements both inculpatory and exculpatory, instruction view told the his prejudicially jury exculpatory statements with caution. The rejected argu- appellate ment, finding that because the instruction defined an admission as a state- ment tending to “a is prove guilt, whether an jury capable discerning admission, extrajudicial statement is an which are instructed to view they 5The entire standard by instruction states: “An admission is a statement defendant other than his acknowledge trial which does not guilt itself of the crimes for which such his trial, defendant is on guilt but which to prove statement tends when considered with the rest of the evidence. admission, so, are “You the exclusive judges as to whether made an if whether such statement true part. you is in whole or in If that the should find defendant did statement, not make the you must reject you part, you it. If find it is true whole or in may part you consider which find be true. an (CALJIC “Evidence of oral admission of the defendant should be viewed with caution.” (5th ed.), No. 2.71 case.) as adapted fit this 6Defense argued: counsel Beverly “Steven Livaditis was jail taken to Hills then taken to hospital county jail ward he was there and there were several officers said, there with him and he rambled and tragedy. sorry. sorry ‘This is a I am I am this happened.’ He rambled on in that quite nature for a while.” *23 admission, caution, to which an is not or whether statement
with 318.) at (220 p. Cal.App.3d not apply.” does cautionary language is and aggravation mitigation the distinction between At a phase, penalty that incriminates a statement between than the distinction often more blurred statement, is sorry the defendant A that example, and one that does not. It admits aggravating. mitigating death is both the victim to stabbed would the defense unclear whether It is also remorse. expresses but guilt caution. view such a statement jury the court to tell desire Therefore, penalty apply should duty sua guilt-phase sponte upon phase only at a penalty need be given instruction cautionary phase. case, was no error. in there was no this request Since there request. “The purpose harmless. have been error would Any additionally if the statement determining the jury instruction is to assist cautionary “The 456.) supra, p. 6 Cal.3d (People Beagle, v. was fact made.” uncontradicted; defend was defendant’s oral admission concerning testimony fabricated, made, or was the statement was not adduced no evidence that ant testi conflicting There was no or reported. remembered inaccurately used, meaning.” their or their context words mony concerning precise 94; Pensinger, Stankewitz, People v. see also supra, p. 51 Cal.3d at (People v. defense, noted, addition, well as as In as reasonable possibility There is no relied the statements. prosecution, verdict. the penalty instruction affected the failure to give cautionary Stankewitz, supra, at (People v. or Mitigating Aggravating the Factors as Either
5. Failure to Label sentencing to label required trial court was Defendant contends the this rejected We have repeatedly either or mitigating aggravating. factors as 103, 148 Cal.Rptr.2d 1 Cal.4th (People Bacigalupo [2 v. contention. 559]; (1990) 52 Cal.3d Gallego 820 P.2d 169].) 802 P.2d the jury to instruct Defendant also claims the court was required Although aggravating. factor is not itself mitigating absence of Davenport the law would be a correct statement of 861]), a instruc specific Cal.3d 289-290 or make parties at least not unless the court tion to that effect is not required, “A advised about broad an contrary suggestion. jury properly improper the absence of is to conclude that unlikely of its discretion scope sentencing consent, disturbance, victim such unusual factors as ‘extreme’ emotional significant entitled to moral is justification reasonable belief [citations]
785 713, (1988) Melton 44 Cal.3d 769 (People v. aggravating weight.” [244 867, 741], here that suggested 750 P.2d italics No one Cal.Rptr. original.) the mere absence of a factor was mitigating aggravating. Age
6. as an Factor Aggravating 22 time of The district that defendant’s at the attorney argued age, years crime, She could be considered as either mitigating aggravating. done,” argued that defendant was “look at what he has although very young, and commented that if murders defendant’s someone committed three age, some conclude that “there might person.” is no for hope that the court should have instructed the argues jury age can only be considered or neutral but never That mitigating aggravating. 1, is not the law. 2 (People v. Visciotti Cal.4th 76-77 Cal.Rptr.2d [5 495, Medina, 909; 388]; 825 P.2d People supra, People v. 51 Cal.3d at v. p. Lucky (1988) 1052]; 45 Cal.3d 302 see also 753 P.2d Mosk, People v. 1 Bacigalupo, supra, (conc. J.).) Cal.4th at opn. The district did not attorney age improperly argue “chronological Visciotti, alone” aggravating. (People supra, v. Cal.4th at p. Rather, she argued that although chronological age suggested mitigation, should jury consider how much criminal behavior defendant had com- mitted in a short time. This was as it would be proper, just proper Edwards, defense to argue age (See People factor was v. mitigating. supra, 54 Cal.3d at p. Criminal behavior condensed into a short time period could be considered reasonably more serious than the same behavior claim, spread out over a long time. we find Contrary defendant’s also no impermissible double counting of factors. penalty
7. Miscellaneous Instructional Contentions We reiterate the following holdings:
(a) The court need not instruct the jury it could consider other crimes
evidence
if it
only
unanimously found such crimes had been proved beyond
Gordon,
1273;
reasonable
(People
doubt.
supra,
v.
People
50 Cal.3d at p.
v.
Miranda
44 Cal.3d
1127].)
(b) The instructions on the deliberative
process
People v.
approved
Brown,
supra,
40 Cal.3d at page
footnote
are constitutional.
Nicolaus,
590-591,
therein;
pp.
cited
cases
Duncan, supra,
(c) need that it return a jury instruct the could verdict of death if were only (i) it persuaded beyond reasonable doubt factor, (ii) existence of each that the aggravating factors out aggravating *25 factors, (iii) weighed was the mitigating death appropriate 907, penalty. (People (1990) v. Marshall Cal.3d 50 935-936 Cal.Rptr. [269 269, 676].) 790 P.2d
(d) The need court not a written require jury detailing statement from the evidence which it relied and reasons the death upon imposing 931, 160, Kelly (1990) penalty. (People v. 51 Cal.3d 970 Cal.Rptr. 800 [275 516]; Medina, P.2d People 909-910.) v. supra, 51 Cal.3d at pp.
(e) 190.3, (b), The need court not the section clarify factor instruction state that it refers to violent criminal conduct other than crimes charged 471, in this (People (1990) proceeding. v. Sanders 51 Cal.3d 528 [273 537, 659, 561]; P.2d Cal.Rptr. People (1988) 797 v. Bonin 46 Cal.3d 703-704 687, 1217].) 758 P.2d Cal.Rptr. [250
(f) The need not delete inapplicable factors from its mitigating 968.) instructions. v. (People Kelly, supra, 51 Cal.3d at p.
F. Error Accumulated Defendant contends the cumulative effect of the asserted errors requires was, however, reversal of the verdict. There error to accumulate. penalty no G. Propriety the Death Penalty
Defendant reiterates constitutional to the 1978 death challenges penalty law which we have since long which we continue to rejected, reject. 730, (E.g., People Rodriquez (1986) v. 42 Cal.3d 777-779 Cal.Rptr. [230 667, 113].) 726 P.2d He in also that we argues must sentence engage comparative review order to determine whether his sentence is We have con- disproportionate. review, sistently declined to undertake such and continue to do so. v. (People Cox, 691; Sanders, supra, 53 Cal.3d at p. People supra, v. 51 Cal.3d at p. crimes, Given the heinous nature of defendant’s extraordinarily death sentence is it certainly disproportionate so shocks the con- Cox, science and offends fundamental (People notions human v. dignity. 690; supra, 53 People Cal.3d at 25 (1979) v. Frierson Cal.3d 183 Richardson, P.2d Cal.Rptr. J.).) [158 599 opn. by (plur. 587] H. Automatic Motion to Modify Death Verdict
Defendant contends the court read considered the erroneously probation report prior ruling on to modify automatic motion
787 190.4, (e). ruling verdict under subdivision He is correct that section motion, which only jury, the court reviews the evidence presented include the v. Williams report. (People does not probation 221].) before report record indicates that the court had read probation However, on the indication ruling contrary automatic motion. absent record, in ruling we assume that the court was not influenced report on the motion. Cal.3d Lewis Here, 892]; Williams, P.2d 45 Cal.3d at p. we need not on such an the record shows the rely affirmatively assumption; *26 court was not influenced report. stated,
At the “I in outset of its the court am under the law ruling, required evidence, have, on the I I ruling to review the which and have application (Italics added.) considered and am The taking that into account. . . .” court motion, then discussed the reasons it all was of which denying on, based After this amply supported by, evidence at trial. presented discussion, the court stated that were its for expressly ruling these “reasons on the it application”; directed that be entered in the clerk’s minutes. they motion, the court denied the automatic and after the defense waived
After arraignment for judgment and stated there legal why judgment was no cause should not be pronounced, the court whether it discussed should modify judgment on its “own motion.” It concluded that there was no basis upon which to do so. Only this did the refer during discussion to the contents of, of the probation The report. record thus shows that the court aware and properly performed, its duty base the modification motion solely the evidence presented to Its jury. consideration of came report only after that ruling discussing whether there was other any basis which upon error, modify judgment. There was no no certainly prejudice.
III. Conclusion
The judgment is affirmed. Lucas, J., Panelli, J., Kennard, J., Baxter, J., J., C. concurred. George, MOSK, J. review, concur the judgment. After I I have found no reversible error or other defect.
I also matters, concur in generally the majority On most opinion. its reasoning is persuasive and its result correct. because,
I I write unlike the believe that the trial court separately majority, erred to instruct the sua should view the by failing sponte, jury, they evidence of defendant’s oral with admissions caution.
In In Legislature enacted the Code of Civil Procedure. pertinent of that certain part, cautionary section 2061 code trial courts to required give occasions,” instructions all proper “on both civil and criminal cases. Its (Recommendation source was the common law. an Evidence Proposing 1965) (Jan. Code 7 Cal. Law Com. Rep. Among Revision specified admonitions was this: “That... the evidence oral admis- Proc., (Code sions of a [ought be caution . . . .” Civ. party viewed] here, (1872).) As § subd. relevant section 1870 same code defined effectively party’s “admission” as a statement adverse to the interest (Id., source, too, (See at trial. subd. Its was the common Hall v. Bark law. ‘‘Emily Banning” 523-524 sub- [impliedly recognizing Cal. law].) stantially same definition under the common reason requiring cautionary instruction on oral admissions is self-evident. virtually
“. . . The in dangers inherent the use of of oral are [evidence admissions] well by courts and ‘It is rule that recognized text writers. a familiar verbal admissions be received should with caution and to careful subjected scrutiny, as no class evidence of is more to error or abuse. Witnesses subject having the best motives are generally language unable to state the exact of an admission, liable, words, are or the by omission changing convey impression false of the used. other of testimony No class language affords such temptations or for witnesses to opportunities unscrupulous torture the facts or commit impossible as it is often open perjury, all, contradict their testimony at or at least other witness than the by any It party himself.’ was led such considerations undoubtedly Legisla- that ture to make the evidence admitting extrajudicial admissions into condi- tional on the of a giving (1949) instruction.” Bemis 33 cautionary (People v. 395, omitted; 82], Cal.2d 398-399 P.2d italics in and citation original [202 accord, 540, e.g., (1931) Smellie v. Southern Co. 212 560 P. Cal. [299 Pacific 529]; 279, (1892) see v. Whittier Smith 95 Cal. [stating 297 P. 529] [30 are as weak generally regarded “[a]dmissions evidence for of a proof fact, stated, and are never conclusive of the facts inference or of the to be therefrom”]; 97, drawn Monsen v. Monsen 174 103 Cal. P. [162 90] [quoting Smith with approval].) 1965, 1965, 299,
In Legislature enacted Evidence (Stats. Code. ch. 2, measure, 1297-1356.) In pp. § same it Code of Civil Proce- repealed 1965, 127, (Stats. 299, dure section 1366.) 2061. p. plainly ch. It intended §
789 its action to have “no effect on the giving [cautionary] instructions contained in” that the admonition on oral admissions. provision, including Code, (Recommendation an Evidence 7 Cal. Law Revision Proposing measure, 358.) Com. Rep. p. Also the same it Code of Civil repealed 299, 58, (Stats. Procedure section 1870. ch. That p. provi- § “admission,” however, sion’s definition of was recodified substantially 299, 2, section 1220 of the just-enacted (Stats. Evidence Code. ch. § is, It settled accordingly, trial court commits error when it fails to admissions, give a cautionary instruction on oral even without a so request, long as evidence (People warrants. We have so held both v. Ford before 60 Cal.2d 892]) P.2d after Pensinger (1991) 899]) P.2d repeal Code of Civil Procedure section 2061.
I now turn case at bar. Evidence of oral admissions defendant was received at trial. For there example, on defendant’s testimony postarrest “explanation” to kill police his decision to William Smith and Ann Heilperin: stabbed Smith because he had “uncooperative been and antagonistic”; he shot kill Heilperin because “he felt that he had to another hostage order to prove his demands should be taken serious- ly.” These statements were “oral.” obviously just as They obviously “admissions.” The fundamental issue material to is the defendant’s penalty Here, personal moral culpability. life and the death. sought People, Defendant’s “explanation” was adverse to his interest at trial: it magnified his blameworthiness. Manifestly, evidence warranted a in- cautionary *28 court, however, struction on oral admissions. The trial failed deliver to such an admonition. Its omission was error.
The majority conclude to the contrary, citing asserted be- “differences tween guilt ante, and penalty trials.” (Maj. 783.) at opn., Their is p. analysis flawed.
Heretofore, trial courts have been to a required give instruction cautionary on oral admissions—to quote Code of Civil Procedure section 2061—“on all proper (Italics occasions.” added.) case, Such an “occasion” arises in any criminal, whether civil or at which evidence of this kind is introduced. Trial courts have been subjected to this obligation because of the very nature of oral admissions. class of evidence is more subject “[N]o to error or Bemis, abuse.” (People v. supra, 33 Cal.2d at p. internal quotation omitted.) marks
790 the determinations are of
Any guilt penalty “differences” between The The trial of no reason is consequence present purposes. plain. In a is indeed a trial. Of that there can be no doubt. such penalty proceeding, oral admissions remain the threat of “error” and “abuse” does problematical: because the is rather than question penalty guilt. not disappear or aggravating that “Whether a statement is majority particular assert ante, 783.) at That mitigating (Maj. opn., p. is often open interpretation.” or well But what it? Whether a statement is may particular inculpatory be. People Vega In is often as well. exculpatory open interpretation 413], of Appeal expressly the Court Cal.App.3d a single as much. It that “it is not uncommon that recognized stated 317.) (Id. statement tend . at But it or innocence . . .” may prove guilt p. was “convinced whether to what jury discerning a is capable [and extent] admission, an are to view statement is an which instructed extrajudicial they caution, an whether to what the statement is not extent] [and admission, (Id. to which the does not cautionary language apply.” I share that defined properly conviction. So as the term “admission” is long to the defendant’s interest at example, —for as statement adverse simply trial—the will be its jury obligations. able to perform the trial court erred instruction Although by failing give cautionary admissions, oral The harm that an instruction no could have arisen. prejudice viz., untrue or of this sort is intended to of an prevent, jury’s crediting court, inaccurate was not of words the out of report party allegedly spoke threatened this case. It was at trial that the evidence disputed reported made, statements defendant had those statements actually reported Hence, contrib- accurately. there is no reasonable that the error possibility uted to the verdict. v. Ashmus 965 Cal.Rptr.2d (5th vol.) majority recognize 1The ed. admonishes that CALJIC No. 2.71 bound
“Evidence of an oral admission of be viewed with caution.” defendant should [the] [a] immaterial Contrary implication, to their it is defines “admission” the instruction *29 narrowly question in terms of the a statement guilt in a criminal case: “An admission is by made by defendant other than at trial which does not itself acknowl [a] [the] [his] [her] trial, edge guilt crime(s) for which such defendant is on but which statement [his] [her] prove guilt quoted tends to when considered with the rest of the evidence." The [his] [her] course, language, specifically was drafted such a in such a case. question cover “admission” (7th I note passing that BAJI No. more pocket pt.) 2.25 ed. defines generally any as “A statement made a party prove disprove before trial which tends to material fact against party’s in this action and which is It also such interest is an admission.” admonishes that “Evidence of an oral admission not made under oath should be viewed with caution.” conclusion, defect, In I found no concur having reversible error or other the judgment.
Appellant’s petition for a was denied 1992. rehearing August