Nor is the defendant entitled to preclude admission of the graphic or sordid details of his factor (b) crimes by stipulating to any resulting conviction or to a sanitized version of the facts surrounding the offense. ( People v. Karis, supra, 46 Cal.3d at pp. 638-640; People v. Brown (1988) 46 Cal.3d 432, 445 [ 250 Cal.Rptr. 604, 758 P.2d 1135]; People v. Melton, supra, 44 Cal.3d 713, 754; People v. Gates (1987) 43 Cal.3d 1168, 1203 [ 240 Cal.Rptr. 666, 743 P.2d 301].)
Defendant maintains the authority to voir dire the jury is implicit in the section, as voir dire is the only meaningful way to determine whether the jurors could consider the penalty phase evidence with open minds and not automatically vote for death by reason of the passions engendered in the first phase of trial. As we observed in People v. Gates (1987) 43 Cal.3d 1168, 1199 [ 240 Cal.Rptr. 666, 743 P.2d 301], there is no direct authority on the meaning of "good cause" in the context of impanelling a new penalty phase jury. Neither is there any authority concerning how good cause may be shown.
On December 29, 1979, petitioner was arrested in Vallejo, and the gun later determined to be the one that killed Lonnie Stevenson was found on him. See People v. Gates, 43 Cal.3d 1168, 1176-78 (1987). On January 4, 1980, an indictment was filed in Alameda County.
( People v. Espinoza, supra, 3 Cal.4th 806, 821.) As we observed in People v. Gates (1987) 43 Cal.3d 1168 [ 240 Cal.Rptr. 666, 743 P.2d 301], to establish juror misconduct, the facts must establish "'an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality.'" ( Id. at p. 1199; People v. Johnson,supra, 6 Cal.4th 1, 21.)
Each testified in detail as to the respective facts underlying defendant's crimes. Cognizant of our prior holding that this kind of testimony is proper at the penalty phase "where it is not the fact of conviction which is probative . . . but rather the conduct of defendant which gave rise to the offense" ( People v. Gates (1988) 43 Cal.3d 1168, 1203 [ 240 Cal.Rptr. 666, 743 P.2d 301]), defendant advances a battery of constitutional arguments against consideration of the underlying facts of prior crimes at the penalty phase. (47) Initially, defendant argues that his Eighth Amendment rights were violated by consideration at the penalty phase of what he calls stale evidence of his prior crimes.
In 1981, Oscar Gates was convicted, inter alia , of first-degree murder accompanied by the robbery-murder special circumstance and received a death sentence, all affirmed on appeal. People v. Gates , 43 Cal.3d 1168, 1176, 240 Cal.Rptr. 666, 743 P.2d 301 (1987). He now seeks a writ of habeas corpus and, in support of that effort, requests an evidentiary hearing on several claims presented in his petition.
This court has considered and rejected similar challenges to a trial judge's refusal to impanel a new jury or question jurors about midtrial exposure to newspaper articles. Our decision in People v. Gates (1987) 43 Cal.3d 1168, 240 Cal.Rptr. 666, 743 P.2d 301 ( Gates ), is particularly instructive. In Gates, as here, the defense moved for a new jury after the jury rendered its guilt phase verdicts.
(44) Defendant correctly asserts that the trial court erred in failing to instruct the jury sua sponte that it could not consider the other-crimes evidence unless the commission of such crimes had been proven beyond a reasonable doubt. ( People v. Robertson, supra, 33 Cal.3d 21 [1977 death penalty law]; see People v. Gates (1987) 43 Cal.3d 1168, 1202 [ 240 Cal.Rptr. 666, 743 P.2d 301] [1978 death penalty law].) In particular, he argues that the failure to give the "reasonable doubt" instruction permitted the jury to improperly consider three different incidents: (1) the false imprisonment and robbery related to the Maruyama burglary; (2) the "possible" assault on the prison classification committee members, including Nyberg (where defendant threw the chair); and (3) the "possible" battery on San Quentin Prison kitchen worker Teri Gelatini.
These comments were not misconduct. As in People v. Gates (1987) 43 Cal.3d 1168, 1201 [ 240 Cal.Rptr. 666, 743 P.2d 301], the prosecutor "did not say that the jury could not consider any mercy or sympathy factors which were supported by the evidence." (Compare People v. Robertson (1982) 33 Cal.3d 21, 58 [ 188 Cal.Rptr. 77, 655 P.2d 279].)
Our review of the record discloses the evidence was argued under factor (b), not factor (c). As we recently held in People v. Gates (1987) 43 Cal.3d 1168, 1203 [ 240 Cal.Rptr. 666, 743 P.2d 301], the People may properly present evidence showing the circumstances of the prior violent criminal activity. Defendant next urges that evidence of the Florida aggravated battery should not have been allowed because the minimum elements of the foreign felony conviction would not have proved a California felony at the time the felony was committed.