[15] The remoteness in time of the events being proved, the availability of less inflammatory methods of imparting to the jury the same or substantially the same information, and the bearing of the evidence on the several objectives of punishment are among the many factors to be considered. (See People v. Friend, 47 Cal.2d 749, 767-768 [ 306 P.2d 463]; People v. Brust, 47 Cal.2d 776, 792 [ 306 P.2d 480].) [16] In the present case it is clear that the challenged evidence had no significant probative value.
It is clear at the outset that the declarant Ann's state of mind on the day of her death was not itself an issue in the case (cf. People v. One 1948 Chevrolet Convertible Coupe (1955) 45 Cal.2d 613, 620-622 [ 290 P.2d 538, 55 A.L.R.2d 1272]; Adkins v. Brett (1920) 184 Cal. 252, 255-256 [ 193 P. 251]) and that the hearsay statement was therefore not admissible under subdivision (a) (1) of section 1250 The People's reliance on People v. Brust (1957) 47 Cal.2d 776 [ 306 P.2d 480], in this regard is wholly misplaced. There the defense sought to introduce two statements made by the victim some months before the homicide, and one statement made the afternoon before the homicide, in order to support its theory "that a long-continued provocatory course of conduct of Mrs. Brust culminated in bringing defendant to a point where his capacity for cool deliberation was substantially impaired."
The evidence, however, was not objectionable as hearsay since it was admitted solely as evidence of the deceased's state of mind. ( People v. Brust, 47 Cal.2d 776, 784-785 [ 306 P.2d 480]; see also People v. Atchley, 53 Cal.2d 160, 171-172 [ 346 P.2d 764]; see Witkin, Cal. Evidence (2d ed. 1966) p. 429; McCormick on Evidence, pp. 465-466, 567; 6 Wigmore, Evidence, § 1790.) The statements tended to show that the deceased was fearful especially of strangers, a matter relevant to the prosecution's theory that the murderer was not a stranger to her.
Section 209, in committing this determination to the discretion of the jury, sets no limits. Rather, the language used in the instructions here seems entirely proper in the light of our decision in People v. Brust, 47 Cal.2d 776 [ 306 P.2d 480]. In affirming the death penalty for multiple murders, we there held that the jurors had been correctly instructed and that they were to select the penalty on the basis of ". . . a thorough consideration of all the evidence.
Appellant contends that the trial court excluded Okihiro's testimony that he heard Castaneda say he was going to kill appellant on the ground the statement was too remote in time, and because Okihiro's testimony was inadmissible hearsay. According to appellant, People v. Brust (1957) 47 Cal.2d 776 (Brust) establishes that the statement was neither too remote nor hearsay. Appellant's contention lacks merit because Castaneda's statement was offered for a hearsay purpose, and appellant failed to establish a hearsay exception.
Appellant contends that the trial court excluded Okihiro's testimony that he heard Castaneda say he was going to kill appellant on the ground the statement was too remote in time, and because Okihiro's testimony was inadmissible hearsay. According to appellant, People v. Brust (1957) 47 Cal.2d 776 (Brust) establishes that the statement was neither too remote nor hearsay. Appellant's contention lacks merit because Castaneda's statement was offered for a hearsay purpose, and appellant failed to establish a hearsay exception.
Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements — i.e., willfulness, premeditation, and deliberation — that would support a conviction of first degree murder. (§§ 187, subd. (a), 189; People v. Jeter (1964) 60 Cal.2d 671, 675 [ 36 Cal.Rptr. 323, 388 P.2d 355]; People v. Brust (1957) 47 Cal.2d 776, 783 [ 306 P.2d 480]; People v. Thomas (1945) 25 Cal.2d 880, 903-904 [ 156 P.2d 7]; 1 Witkin Epstein, Cal. Criminal Law (2d. ed. 1988) Crimes Against the Person, § 486, pp. 548-549.) In contrast, manslaughter is the unlawful killing of a human being without malice.
ere with that determination since it has "no power to substitute its judgment as to choice of penalty for that of the trier of fact." ( In re Anderson and Saterfield, supra, 69 Cal.2d 613, 623; People v. Lookadoo, 66 Cal.2d 307, 327 [ 57 Cal.Rptr. 608, 425 P.2d 208]; People v. Mitchell, 63 Cal.2d 805, 821 [ 48 Cal.Rptr. 371, 409 P.2d 211]; People v. Welch, 58 Cal.2d 271, 275 [ 23 Cal.Rptr. 363, 373 P.2d 427]; People v. Love,supra, 56 Cal.2d 720, 728; People v. Howk, 56 Cal.2d 687, 700 [ 16 Cal.Rptr. 370, 365 P.2d 426]; People v. Lindsey, 56 Cal.2d 324, 328 [ 14 Cal.Rptr. 678, 363 P.2d 910]; People v. Monk, 56 Cal.2d 288, 300 [ 14 Cal.Rptr. 633, 363 P.2d 865]; People v. Rittger, 54 Cal.2d 720, 734-735 [ 7 Cal.Rptr. 901, 355 P.2d 645]; People v. Moore, supra, 53 Cal.2d 451, 454; People v. Cash, 52 Cal.2d 841, 845 [ 345 P.2d 462]; People v. Linden, 52 Cal.2d 1, 26-27 [ 338 P.2d 397]; People v. Feldkamp, 51 Cal.2d 237, 241 [ 331 P.2d 632]; People v. Borchers, 50 Cal.2d 321 [ 325 P.2d 97]; People v. Brust, 47 Cal.2d 776, 792 [ 306 P.2d 480]; People v. Green, 47 Cal.2d 209, 235 [ 302 P.2d 307]; People v. Carmen, 43 Cal.2d 342, 351 [ 273 P.2d 521]; People v. Byrd, 42 Cal.2d 200, 213 [ 266 P.2d 505]; People v. Ortega, 41 Cal.2d 621, 622 [ 262 P.2d 2]; People v. Sutic, 41 Cal.2d 483, 493 [ 261 P.2d 241]; People v. Harrison, 41 Cal.2d 216, 219 [ 258 P.2d 1016]; People v. Dessauer, 38 Cal.2d 547, 555 [ 241 P.2d 238]; cf. People v. Talbot, 64 Cal.2d 691, 712 [ 51 Cal.Rptr. 417, 414 P.2d 633]; People v. Ashley, 59 Cal.2d 339, 365 [ 29 Cal.Rptr. 16, 379 P.2d 496].) Although none of these cases purports to derive this rule from the language of subdivision 7 of section 1181, the majority would apparently nonetheless hold that subdivision 7 has been construed by reiteration and, since some of the later cases refer to the power of the trial court under subdivision 7, by implication.
Although "declarations directly asserting the existence of a mental condition on the part of the decedent-declarant, and not including a description of the past conduct of a third person that may have caused that mental condition, are and should be admissible, they should be admitted only where there is at least circumstantial evidence that they are probably trustworthy and credible. As was said by this court in People v. Brust, 47 Cal.2d 776, 785 [ 306 P.2d 480], in quoting from People v. Weatherford, 27 Cal.2d 401, 421 [ 164 P.2d 753], such declarations are `admissible only if there appears to be a necessity for that type of evidence and a circumstantial probability of its trustworthiness (V Wigmore, p. 202, § 1420). . . . The death of the declarant creates the necessity for resort to hearsay and the declarations, being those of a present existing state of mind, made in a natural manner and not under circumstances of suspicion, carry the probability of truthworthiness [ sic]. (VI Wigmore, § 1725, p. 80.)' (See also McCormick. Evidence (1954), § 268, p. 568.) Wigmore also has stated that such declarations are admissible only when they are `made at a time when there was no motive to deceive.'
In evaluating the evidence the jury was bound by the instructions given as to the limited purpose for which certain evidence was admitted, but beyond that it could draw its own inferences, determine the probative weight of evidence, and select the appropriate penalty on the basis of its evaluation of the evidence. ( People v. Brust, 47 Cal.2d 776, 787-790 [ 306 P.2d 480]; People v. Friend, 47 Cal.2d 749, 767-768 [ 306 P.2d 463].)" Counsel for Abdullah argues that the Purvis case, and the cases upon which it relies, were wrongly decided.