Summary
In People v. Walker, 41 Cal.3d 116, 222 Cal.Rptr. 169, 711 P.2d 465 (1985), the California court held that it was error to admit at sentencing defendant's alleged death threats when not disclosed to him prior to trial as required under a California statute.
Summary of this case from State v. PizzutoOpinion
Rehearing Granted March 20, 1986.
Opinion on pages 116-143 omitted.
REHEARING GRANTED
[222 Cal.Rptr. 170]Ronald W. Rose, Mark A. Arnold and Carleen R. Arlidge, San Jose, for defendant and appellant.
George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Gloria F. DeHart and Kristofer Jorstad, Deputy Attys. Gen., for plaintiff and respondent.
BROUSSARD, Justice.
This is an automatic appeal from a judgment imposing a penalty of death following convictions for first degree murder and other crimes. Two separate incidents were joined for purposes of trial. In the first, during the commission of a liquor store robbery, defendant Marvin Pete Walker, Jr., was responsible for the shooting of three people, including a fifteen-year-old boy who died as a result. In the second, also during the commission of a robbery, defendant twice shot a young woman in the head. She survived.
Various issues concerning jury selection, the guilt phase, and the penalty phase are raised in this appeal. We have concluded that although the judgment of guilt and the finding of special circumstances must be affirmed, the penalty verdict cannot be sustained. The cause is therefore remanded for a new penalty trial in accordance with the views expressed in this opinion.
I. SUMMARY OF FACTS AND PROCEEDINGS.
A. The Liquor Store Incident.
Near closing time on August 6, 1979, defendant, accompanied by a second individual, entered Dan's Bottle Shop, and drew a gun. Defendant ordered the co-owner of the store, Jerry Romero, and two teenage employees, Andy Zamora and Joe [222 Cal.Rptr. 171] Vasquez, to go to the back room and demanded that Romero open the safe. Romero replied that he did not have the combination to the safe. Defendant responded by grabbing a hammer and exclaiming, "If you don't open the safe I'm going to hit you with the hammer." The second assailant asked for Romero's wallet. After unsuccessfully searching the wallet for a combination, he told defendant, "He [711 P.2d 467] doesn't know it, just forget it." The companion then returned the wallet to Romero.
At that moment, the bell went off indicating that a customer had walked into the store. Defendant ordered Vasquez to wait on the customer and then to return to the back room. Defendant climbed on top of the storage shelves to watch Vasquez. Vasquez waited on the customer and returned to the back room.
Defendant and his companion then marched the group to the front of the store. Defendant opened the cash register and removed approximately $150. His companion said, "Come on. We got the money. Let's get out." Defendant replied, "No. We're not going to leave any witnesses."
Defendant then marched Romero, Zamora and Vasquez to the back room. As they entered, defendant handed the gun to his companion. Defendant then hit Romero on the head with a wine bottle. As Romero fell to the floor, defendant hit him again on the head with a second wine bottle. Defendant took Romero's wallet from his back pocket, then felt Romero's back and said, "We don't have to worry about this guy any more."
Defendant walked toward Zamora and Vasquez and ordered, "Get on your knees." The two teenagers complied. They were crying and pleading for their lives. Three shots were then fired in rapid succession: the first two struck both Zamora and Vasquez in the head; the third struck Romero through the hip. Defendant and his companion then quickly departed.
It is unclear whether defendant or the second assailant fired the shots.
Joe Vasquez was fatally wounded. The bullet had entered in the front of the left forehead, and exited through the back of the right side of the head.
B. The Medical Building Incident.
Late in the evening on September 5, 1979, defendant entered a medical building and pointed a gun at Rosa Olveda, who was working late. In contrast to the liquor store incident, defendant was now wearing a mask. He demanded that Olveda open the safe. Olveda replied that there was no safe. He then ordered her to the back room. Once there, he asked for her money and her car keys. She gave him $11 and the keys. He told her to lie down so he could tie her up, but he had nothing with which to tie her. He ordered her to stand up, ripped open her blouse, and touched her breasts. Then he struck her with the gun on her head an estimated 12 times. She ran to the door, but he pulled her back and kept beating her, injuring her back and fracturing her neck. She finally fell to the floor, pretending to be dead. He then shot her twice in the head, once through the left ear and once through the left eye. She lost her hearing in the ear and her sight in the eye as a result.
C. Evidence at the Guilt Trial.
A great deal of evidence connected defendant with the crimes. Zamora identified defendant at trial, as did Romero and Olveda. The latter two had previously positively identified him at a physical lineup.
A resident of the liquor store area incident testified that he saw two black men walk towards and enter what appeared to be a Chevy Nova of a rust or tan color with heavy oxidation. He later viewed a car owned by the defendant, and stated it was the same make, color and body style.
Olveda's car, taken after the medical building incident, was eventually found by a police officer parked two city blocks from where defendant's sister lived.
[222 Cal.Rptr. 172]Defendant sold the murder weapon, a .32 caliber semiautomatic pistol, to undercover Officer MacIvor. This weapon was positively identified by a criminalist as the weapon from which .32 caliber casings had been found at both the liquor store and the medical building. The coroner testified that Vasquez had died from a .32 caliber gunshot wound to the head.
Defendant made numerous incriminatory statements to Officer MacIvor while the officer was operating a "sting" operation in an undercover capacity. MacIvor fronted as a businessman who was purchasing stolen property. When defendant sold MacIvor the murder weapon on September 26, 1979, he told MacIvor that the gun belonged to him. When the two met again on September 28, MacIvor told defendant that the gun did not work. Defendant responded that the gun did indeed work and had made a lot of money for him in the last six months. Defendant told MacIvor to be careful not to be caught with the gun because it "had done a murder" eight months previously. MacIvor asked him "what the hell that meant." Defendant replied that the gun originally belonged to a friend who had killed someone with it, and that the friend is now serving time in Soledad for the murder.
When the two next met on October 2, MacIvor secretly recorded the conversation. Defendant told MacIvor that the weapon had been used eight months previously in a murder in Salinas, and that the person responsible was currently serving time for it. MacIvor asked him why he kept the gun for eight or nine months. Defendant replied that the murderer had called him on the phone, told him the gun was in his room, and asked him to get rid of it. Defendant subsequently got the gun at a girlfriend's house and buried it in his mother's backyard. He said that he had oiled it down. The gun did not appear to MacIvor to have been buried in the ground nor to have been freshly oiled, and a criminalist testified at trial that he saw no evidence that the gun had been kept underground or had been recently oiled.
An investigator from Monterey County, however, testified at trial that no homicide had been committed there between October 1978 and May 1979 with a .32 caliber gun.
Another witness, Sisco testified that at a party in late September 1979, he heard defendant and his friends talking about a robbery they had committed. Defendant said they had robbed somebody, and "some punk got in the way" so he "took him out of the game." Defendant had a gun on his side tucked in the waistband.
The defense attempted to impeach the eyewitness identifications through cross-examination of the witnesses on the various details of the descriptions of the defendant and his companion. Defendant testified on his own behalf, but each statement he made on the stand conflicted with the last; his previous statements to MacIvor and to police at later dates were used to impeach his testimony, and these statements conflicted not only with his testimony but with each other as well. The defense also attempted to present Dr. Haney as an expert witness on the subject of eyewitness identification. The trial judge, however, ruled that such testimony was inadmissible.
D. Conviction.
In the liquor store incident, defendant was convicted of the first degree murder of Vasquez, with use of a firearm, and the special circumstance of murder while engaged in the commission of robbery; assault with the intent to commit murder of Zamora, with use of a firearm; assault with intent to commit murder of Romero, with use of a firearm; and robbery, with use of a firearm. In the medical building incident, he was convicted of assault with intent to commit murder of Olveda, with use of a firearm; robbery, with use of a firearm; and taking Olveda's vehicle without [222 Cal.Rptr. 173] her consent to deprive her of title and possession of it.
The jury acquitted defendant of the charge of assault with intent to commit murder of Enrique Guerrero, who had inadvertently entered the store during the robbery and had been hit over the head by an unidentified individual.
E. Evidence at the Penalty Trial.
The defense and the district attorney stipulated that the evidence at the guilt phase would be considered by the jury in the penalty phase. Only a few additional witnesses were called to give actual testimony.
Officer MacIvor testified that after conclusion of a preliminary hearing, defendant walked by him and a deputy district attorney and said, "The hell with getting a cop. I'll get me a D.A." The deputy district attorney testified that when defendant walked by, he glared at the district attorney and made a comment. All the district attorney could make out was "D.A."
Officer Nichols testified over objection to a conversation he heard through electronic monitoring between defendant and his cousin at the police station. During the conversation, defendant told his cousin that he would have to get the gun from "Danny" (Officer MacIvor) and that "Danny" would have to be "offed." The day Officer Nichols was to testify, the district attorney found out that a tape had been made of the conversation. At an in camera hearing, Officer Nichols testified that he made a copy of the tape and kept the original. The copy was turned over to homicide detectives, who sent it to experts in Sacramento, but the last portion was "unreadable" and the technicians could not bring out the voices. Nichols kept the original tape for several months, but could not find it. He believed he must have reused it. As a result, neither the district attorney nor the defense ever received or heard the tape.
The defense presented several family members and friends as witnesses. Defendant's mother testified that defendant, now 21 years old, had grown up in a poor family with 7 brothers and sisters. Defendant worked and helped support the family. Defendant's sister Marlene testified that defendant had helped her financially and emotionally in the past. She stated that she loved him and wished him to live. Defendant's sister Debbie testified that he had occasionally helped her financially. She also wished him to live. A church secretary testified that defendant had done some yard work for her in the past. A friend of the defendant testified that he sometimes drove her to work in Salinas. Defendant's girlfriend testified that he had helped her emotionally, that she thought he was innocent, and that she loved him and did not want him to die. Defendant testified and denied making the threats to the officer and the district attorney. He claimed he was innocent of the crimes, and that he wished to live.
II. GUILT PHASE ISSUES.
A. Peremptory Challenges to Jurors.
Defendant contends that the prosecutor's use of peremptory challenges to exclude persons with reservations about the death penalty denied him a representative guilt and penalty jury. Our recent decision in People v. Zimmerman (1984) 36 Cal.3d 154, 160-161, and id., pages 161-162, 202 Cal.Rptr. 826, 680 P.2d 776 (Kaus, J., conc.), rejected this argument as it relates to a jury which determines guilt and special circumstances; People v. Turner (1984) 37 Cal.3d 302, 313-315, 208 Cal.Rptr. 196, 690 P.2d 669 rejected it as it relates to the penalty jury.
B. Severance.
Defendant contends that the trial court erred in denying his motion to sever the counts stemming from the liquor store incident from the counts stemming from the medical building incident. There is no merit to this contention.
Penal Code section 954 provides in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses ... be tried separately...." [222 Cal.Rptr. 174] ...." In this case, the offenses were properly joined, and the trial court did not abuse its discretion in denying the severance motion.
The robbery, murder and assault with intent to commit murder charges were all offenses of the same class. "[I]t [seems] beyond question that section 954 permits joinder of all assaultive crimes against the person, all of them being considered 'of the same class.' " (Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 135, 172 Cal.Rptr. 86, cert. den., 451 U.S. 988, 101 S.Ct. 2325, 68 L.Ed.2d 846; see also Williams v. Superior Court (1984) 36 Cal.3d 441, 447, 204 Cal.Rptr. 700, 683 P.2d 699; People v. Rhoden (1972) 6 Cal.3d 519, 99 Cal.Rptr. 751, 492 P.2d 1143; People v. Kemp (1961) 55 Cal.2d 458, 11 Cal.Rptr. 361, 359 P.2d 913.)
The Vehicle Code section 10851 charge was required to be joined to the medical building incident charges under Penal Code section 654.
"Since the statutory requirements for joinder were clearly met in this case, [defendant] can predicate error only on a clear showing of prejudice." (Williams v. Superior Court, supra, 36 Cal.3d at p. 447, 204 Cal.Rptr. 700, 683 P.2d 699.) As we noted in Williams, the first step in the analysis is to determine whether the evidence in each case would be admissible in the other; such cross-admissibility would ordinarily dispel any inference of prejudice.
In the present prosecution, the question of cross-admissibility of evidence to prove identity at the guilt phase is close. In both charged instances, the defendant entered late at night, demanded that a safe be opened, marched his victims to a back room, and began his attack with a vicious beating to the head of the victim. Using the same gun in each instance, he shot the victim while he or she was lying on the floor. Defendant, on the other hand, points to differences which suggest the absence of a common plan--the liquor store incident involved two unmasked perpetrators, while the medical building assault was committed by a single, masked assailant.
We need not resolve that question, however, because we have concluded that even if we were to determine that evidence of each incident would not be admissible in the separate trial of the other, it would not follow that the trial court abused its discretion in denying severance. " 'The judge's discretion in refusing severance is broader than his discretion in admitting evidence of uncharged offenses....' [A] ruling on a motion to sever is based on a weighing of the probative value as against the prejudicial effect, but in the weighing process the beneficial results from joinder are added to the probative-value side. This requires the defendant to make an even stronger showing of prejudicial effect than would be required in determining whether to admit other-crimes evidence in a severed trial." (Coleman v. Superior Court, supra, 116 Cal.App.3d 129, 138-139, 172 Cal.Rptr. 86; Williams v. Superior Court, supra, 36 Cal.3d 441, 451, 204 Cal.Rptr. 700, 683 P.2d 699.)
We find defendant's showing of prejudice insufficient to prove an abuse of discretion. This is not a case such as Coleman v. Superior Court, supra, 116 Cal.App.3d 129, 172 Cal.Rptr. 86, where there was danger that strong evidence of a lesser but inflammatory crime might be used to bolster a weak prosecution case on a murder charge. Neither does this case resemble Williams v. Superior Court, supra, 36 Cal.3d 441, 204 Cal.Rptr. 700, 683 P.2d 699, where at least one and possible two relatively weak charges were joined to support each other, raising the danger that the jury would aggregate the evidence to convict on both charges. (See 36 Cal.3d at p. 453, 204 Cal.Rptr. 700, 683 P.2d 699.) Instead, the prosecution here presented strong and convincing evidence as to both incidents. Eyewitnesses to each positively identified defendant; defendant's gun had been used in each incident; in the liquor store matter, defendant's car was identified as the getaway vehicle, while in the medical building [222 Cal.Rptr. 175] matter the victim's stolen car was abandoned two blocks from his sister's apartment; defendant's own statements incriminated him in each incident. There appears to be no substantial danger that the jury, by aggregating evidence from the two charges, would improperly convict defendant on either or both counts. We thus have no reason to believe that defendant would have obtained a more favorable outcome[711 P.2d 471] if the two incidents had been tried separately.
We note that at the penalty trial for the liquor store murder, evidence of defendant's attempted murder of Rose Olveda was admissible to prove an aggravating circumstance.
C. Statements to an Undercover Police Officer.
Defendant contends that his statements made to Officer MacIvor should not have been admitted at trial, because he was illegally entrapped into making them. He also claims that his Fifth Amendment rights were violated by the "interrogation."
The local police department had been running a "sting" operation in the San Jose area for about a year. Officer MacIvor, calling himself "Danny," posed as a frontman in the operation. On September 26, 1979, nearly a month after the medical building incident, defendant approached MacIvor and sold him several items which had been stolen during a burglary that morning. He also sold MacIvor the murder weapon from the liquor store incident. MacIvor noticed that defendant retained some stolen items in the trunk of his car. When defendant drove off, MacIvor notified waiting officers who pulled defendant over and cited him for a defective taillight. Defendant consented to a search of the car. The officers recovered the stolen property and a quantity of marijuana. They noticed defendant's cousin in the car, recognized him as the subject of an outstanding arrest warrant, and arrested him. Defendant was also arrested and taken down to the station. Charges were not pressed at that time, however, and he left the police station.
MacIvor submitted the gun to fellow police officers and was told that the gun had been used in a murder and robbery in August. Although defendant was not then a suspect in the murder, MacIvor was told to meet with defendant again to elicit whatever information he could about the gun. They agreed to meet on September 28, 1979, at which time defendant first told MacIvor that the gun "had done a murder," and made other inculpatory statements. The two met again on October 2, 1979; this time, Officer MacIvor was wired for sound and the conversation was taped. Again, defendant made numerous inculpatory statements.
The burglary victim filed a complaint in municipal court on October 2, 1979, the same day as the last meeting between defendant and MacIvor. Defendant was arrested the next day and arraigned on October 4, 1979. The murder complaint was not filed until October 9, 1979.
Defendant has no valid claim of entrapment under either the federal or state standard. The federal standard focuses on the predisposition of the defendant to commit the crime (Hampton v. United States (1976) 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113); here defendant approached MacIvor on his own, with the purpose of selling stolen property, and was thus predisposed to commit that crime. The state standard focuses instead on the intent of the police officer, and whether his conduct would likely induce a normally law-abiding person to commit the crime (People v. Barraza (1979) 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947): MacIvor did nothing that would tempt a normal law-abiding person to sell stolen property. Furthermore, even if defendant were entrapped into selling stolen property, it is doubtful whether that consideration would compel us to exclude statements he made during the sale regarding a prior murder.
Defendant also cannot rely on Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 to suppress the statements made to MacIvor. It is likely [222 Cal.Rptr. 176] that the officer deliberately elicited incriminating responses from defendant, thus satisfying the interrogation requirement of Miranda (see Rhode Island v. Innis (1980) 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297)--but Miranda applies only when the defendant is in custody. (Innis, supra, at p. 300, 100 S.Ct. at p. 1689; see also In re Albert R. (1980) 112 Cal.App.3d 783, 169 Cal.Rptr. 553.) In People v. Leach (1975) 15 Cal.3d 419, 124 Cal.Rptr. 752, 541 P.2d 296 defendant was arrested for murder. He had been hired by Edith and Lorraine Kramer to commit the crime. A sheriff's deputy posed as a jailhouse friend of defendant and visited the Kramers, informing them that defendant would implicate them if they did not get defendant a lawyer and the money owed him. The Kramers made a series of incriminating statements to the deputy. We held that the statements were admissible, rejecting defendant's "rather preposterous contention that the undercover agent should, prior to insinuating himself into the confidences of the Kramers, have delivered to them the Miranda warnings normally required as a concomitant of arrest. This claim is premised on the assumption that the authorities already had probable cause to arrest the Kramers at the time of their conversations with the undercover officer.... While arrest is not a condition precedent to the right to Miranda ... warnings, custody is: the vice requiring the prophylaxis of the notice of rights is the inherently coercive atmosphere pervading custodial interrogation. [Citation.] Since at the time of their admissions the Kramers were not restrained in any way or under any color of custody, and indeed were unaware that they were even talking to an agent of the state, any coercion operating on the Kramers was not attributable to their being in custody." (Leach, supra, 15 Cal.3d at pp. 442-443, 124 Cal.Rptr. 752, 541 P.2d 296, italics in original.)
In the case at bar, the defendant was not in custody when he met with Officer MacIvor. Although he had been arrested on September 26, he was immediately released and had no charges pressed against him. Under such circumstances, the Miranda protections did not attach, and no violation of his rights occurred. The statements were properly admitted at trial.
D. Felony-Murder Rule.
Defendant argues that California should abandon the felony-murder rule. We recently rejected a similar argument in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, where we upheld the continuing viability of the rule.
E. Assault With Intent to Commit Murder Instructions.
Defendant claims that the jury was erroneously instructed as to assault with intent to commit murder because the instructions led the jury to believe it could determine guilt without finding express malice. (See People v. Martinez (1980) 105 Cal.App.3d 938, 165 Cal.Rptr. 11.)
This contention misstates the instructions actually given. The jury was told that "[t]he defendant is also charged ... with ... assault with intent to commit murder, a violation of 217 of the Penal Code. That section provides that every person who assaults another with the specific intent to commit murder is guilty of the crime of assault to commit murder. [p] In order to prove the commission of the crime of assault to commit murder, each of the following elements must be proved: [p] One, that a person was assaulted, and [p] Two, that the assault was made with the specific intent to murder such person. [p] Assault with intent to commit murder requires express malice and a specific intent to murder and not merely the specific intent to kill. However, the murder which defendant must intend, need only be murder of the second degree." (Italics added.) Thus, the jury was specifically instructed that it must find express malice.
Defendant argues that the reference to second degree murder implied to jurors that either express or implied malice could be found. This contention is meritless. [222 Cal.Rptr. 177] The jury should have been able to clearly understand that express malice, as directed in the instruction, must be found in order for defendant's conduct to constitute assault with intent to commit murder, and that the reference to second degree murder pertained only to a determination of the fixing of the degree of the murder--i.e., that the jury need not determine whether the intended murder, with express malice, [711 P.2d 473] would have been fixed at first degree (being premeditated or during the commission of a robbery) or second degree.
F. The Exclusion of Dr. Haney's Testimony.
During trial, defense counsel called a professor of psychology, Dr. Craig Haney, as an expert witness to give testimony on the factors affecting the reliability of eyewitness identification. Dr. Haney planned to identify numerous factors in this case which, in his expert opinion, increased the likelihood of the misidentification of the defendant. He hoped to expound on various experimental studies which have demonstrated that persons under stress do not perceive details well, that mistaken identifications may result from suggestion or unconscious influences, that victims of a crime in which a gun is used tend to focus on the gun rather than on the perpetrator, and that many people find it difficult to identify persons of another race. The prosecution objected to the introduction of this testimony, and after an in camera hearing, the court ruled that the testimony would be excluded. Although the court agreed that the factors in this case played some part in the eyewitness identification, it nevertheless concluded that the subject matter of the proposed testimony was common knowledge and would tend to usurp the basic function of the jury. Defendant now contends that the trial court abused its discretion in excluding the testimony.
The trial court relied on two Court of Appeal decisions which held that the trial judge did not abuse his discretion in excluding expert testimony on eyewitness identification. (People v. Guzman (1975) 47 Cal.App.3d 380, 385-386, 121 Cal.Rptr. 69; People v. Johnson (1974) 38 Cal.App.3d 1, 6-7, 112 Cal.Rptr. 834.) Our recent decision in People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, however, criticized the reasoning of those decisions, and made it clear that in an appropriate case the exclusion of expert testimony would constitute not only an abuse of discretion, but reversible error. (P. 376, 208 Cal.Rptr. 236, 690 P.2d 709.)
McDonald affirmed that "in the usual case the appellate court will continue to defer to the trial court's discretion in this matter." (P. 377, 208 Cal.Rptr. 236, 690 P.2d 709.) It also explained the features which characterize the exceptional case in which the exclusion of such evidence is an abuse of discretion: it is one in which "an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury." (Ibid.)
The present case is one which, in our opinion, lies within the discretion of the trial court to admit or to exclude the evidence. Although Dr. Haney offered to identify factors which might suggest that the witnesses misidentified the defendant, ample circumstantial evidence was presented by the prosecution which linked defendant to the crimes and gave the identifications an independent source of reliability. As we noted earlier, defendant admitted possession of the gun; his car was identified as the possible getaway vehicle from the liquor store; Olveda's stolen vehicle was found parked two blocks from where defendant's sister lived; and defendant made numerous incriminating statements to both friends and police. Although the trial court, under these circumstances, could nevertheless have reasonably admitted the proffered testimony, we find no abuse of discretion, and clearly no prejudicial [222 Cal.Rptr. 178] error, in its decision to exclude that testimony.
G. Prosecutorial Misconduct.
Defendant contends that the prosecutor engaged in improper conduct requiring reversal of the judgment of guilt. In particular, defendant complains that the prosecutor was making faces during jury selection and that he made an unsolicited comment about the "liberal" leanings of this court while questioning a prospective juror. Both matters reflect minor events of a relatively harmless nature which occurred early in the proceedings.
We agree with defendant, however, that it was unnecessary for the prosecutor to show witness Appelman, the neighbor who discovered the body of Joe Vasquez, a high school graduation photograph of Vasquez. There was no dispute as to the identity of the body and Appelman, who was acquainted with Vasquez, could have identified it without aid from the photograph. In People v. Ramos (1982) 30 Cal.3d 553, 578, 180 Cal.Rptr. 266, 639 P.2d 908, we held that the unnecessary introduction of a photograph of the murder victim, under circumstances likely to arouse the jury's sympathy against the defendant, was error. We also concluded, however, that such error was not reversible when the case was not a close one in which the jury's sympathy for the victim might lead it to improperly convict the defendant. In the present case we reach the same conclusion; it is not reasonably probable that the introduction of Vasquez' photograph contributed to the verdict against defendant, and hence the asserted misconduct of the prosecutor in showing that photograph to the witness does not require reversal of the conviction.
III. THE FELONY-MURDER SPECIAL CIRCUMSTANCE FINDING.
Defendant contends that the felony-murder special circumstance of the 1978 death penalty initiative--subdivision (a)(17) of Penal Code section 190.2--is facially unconstitutional because it permits the imposition of a death sentence upon a defendant who did not participate in an intentional killing. In Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, we preempted that contention by construing the 1978 law to require intent to kill or to aid in a killing as an element of the felony-murder special circumstance. (People v. Garcia (1984) 36 Cal.3d 539, 547-549, 205 Cal.Rptr. 265, 684 P.2d 826, held that Carlos applied retroactively to cases not yet final.) But although Carlos upheld the 1978 initiative, that decision does require the trial court to instruct the jury that it could find a special circumstance of felony murder only if it determined that defendant intended to kill the victim or to aid in the killing. The court's failure to so instruct in the present case is error.
Garcia said that an instructional error which completely eliminates the issue of intent from the jury's consideration would ordinarily be reversible per se. Our opinion, however, set out a number of exceptions to this rule, two of which bear upon the present case. First, quoting People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913, we noted that " 'in some circumstances it is possible to determine that although an instruction ... was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases, the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant....' " (36 Cal.3d pp. 554-555, 205 Cal.Rptr. 265, 684 P.2d 826) Second, citing People v. Cantrell (1973) 8 Cal.3d 672, 685, 105 Cal.Rptr. 792, 504 P.2d 1256 and People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267, we stated that reversal would not be required in a case " 'where the parties recognized that intent to kill was in issue, presented all evidence at their command on that issue, and in which the record not only [222 Cal.Rptr. 179] establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.' " (36 Cal.3d p. 556, 205 Cal.Rptr. 265, 684 P.2d 826.)
The record in the present case leads us to conclude that the absence of a Carlos instruction was not prejudicial error. Defendant and an unidentified partner robbed the liquor store. After defendant had taken the money from the cash register, his partner urged them to leave, but defendant insisted that they were "not going to leave any witnesses." Defendant then marched the victims to the back room. He hit Romero on the head with two wine bottles; Romero fell to the floor, and defendant felt his back, commenting "we don't have to worry about this guy anymore." He then ordered Vasquez and Zamora to their knees. Three shots were fired in rapid succession: the first two hit Vasquez and Zamora in the head, the third hit Romero (despite defendant's earlier comment). Although it is not certain that defendant did the actual shooting, no evidence suggests that he did not share the triggerman's purpose to kill all the witnesses to the robbery.
Three persons were shot--Vasquez, Romero and Zamora. Only Vasquez died. Defendant was charged with two counts of assault with intent to commit murder for the shootings of Romero and Zamora. The jury was instructed that this crime requires express malice. (See part II.E. of this opinion, ante.) Express malice, in this context, necessarily includes an intent to kill. (See People v. Murtishaw (1981) 29 Cal.3d 733, 764-765, 175 Cal.Rptr. 738, 631 P.2d 446.) The jury verdict finding defendant guilty on both counts thus determined that he intended to kill Romero and Zamora.
In sum, defendant's intent to kill was in issue, undisputed evidence proved that intent, no contrary evidence whatever was produced, and the jury found intent to kill. Thus the necessary ingredients for both the Cantrell-Thornton and the Sedeno exceptions are present.
Defendant protests, however, that technically only his intent to kill Romero and Zamora was in issue and determined by the jury. But the evidence shows a single intent as to all victims, not a separate and different intent as to each. It is inconceivable that a jury would find that defendant intended to kill only the victims who survived, and not the one who died. As a practical matter, it is clear that defendant knew his intent vis-a-vis the three victims was in issue, and would be decided by the jury.
Defendant presents a second, more substantial, objection. Facing a possible death penalty for the murder of Vasquez, defendant might be unconcerned about the charges of assault with intent to commit murder, and the issues they raised. If defendant believed that lack of intent to kill was no defense to the capital charge, he might choose to forego presenting evidence on that point in favor of an alternative strategy.
We recognize that in a capital case the defendant's foremost concern is to avoid a death sentence. Thus there may well be instances in which the record shows that as a result of the defendant's pre-Carlos impression that the People need not prove intent to kill as an element of a felony-murder special circumstance, the defendant decided to forego any attempt at raising a reasonable doubt on that issue, believing instead that his only chance to escape a death sentence lay in avoiding the felony-murder charge altogether. There may also be cases in which it appears that the defendant decided against contesting intent to kill as a result of an erroneous trial court ruling. (See, e.g., People v. Ramos (1984), 37 Cal.3d 136, pp. 147-148, fn. 2, 180 Cal.Rptr. 266, 639 P.2d 908.) It would, of course, be inappropriate to apply the Sedeno exception in such cases when the record establishes that the defendant did not present relevant evidence on intent because of a mistake as to the applicable legal principles. (See People v. Garcia, supra, 36 Cal.3d at p. 556, 205 Cal.Rptr. 265, 684 P.2d 826.)
In this case, however, the record contains no indication that defendant was unaware of the relevance of intent to kill or that he [222 Cal.Rptr. 180] failed to contest it because of his mistaken belief that the robbery-murder special circumstance would trigger a penalty trial in any event. Because defendant was charged with crimes in which intent to kill was an explicit element, we assume--in the absence of any contrary indication in the record--that defendant presented all of the [711 P.2d 476] evidence that was available on that issue. If defendant can demonstrate that this assumption is inaccurate, his remedy is by writ of habeas corpus.
We emphasize that Carlos error is ordinarily reversible per se, and that the tack we take here--affirming the finding of special circumstances subject to possible review on petition for habeas corpus--arises from the peculiar facts before us in this case.
IV. PENALTY PHASE ISSUES.
A. Notice of Alleged Death Threats in the Penalty Phase.
The prosecution presented evidence in the penalty phase of death threats allegedly made by the defendant on two separate occasions. In the first incident, at the conclusion of a preliminary hearing, defendant muttered "the hell with getting a cop, I'll get me a D.A." as he walked by the district attorney. In the second incident, while being detained in a police station for suspicion of burglary, defendant told his cousin that they would have to get the gun from "Danny" (the undercover agent, Officer MacIvor), and that Danny should be "offed." Defendant contends that the prosecutor failed to give him proper notice of its intent to offer such evidence.
Penal Code section 190.3 provides in relevant part: "Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial." The prosecutor did not provide the defendant with the specification of evidence required by this section until a date one month after the trial of guilt had commenced, and only one week before the penalty trial began.
The Attorney General argues that the term "trial" in the quoted language from section 190.3 refers to the penalty trial. A similar argument was rejected in Keenan v. Superior Court (1981) 126 Cal.App.3d 576, 177 Cal.Rptr. 841. There a defendant charged with murder with special circumstances petitioned for a writ of mandate after the trial court denied his pretrial request for notice of the evidence to be introduced by the prosecution as evidence of aggravating circumstances. In granting the writ, the Court of Appeal said that "[p]rovisions of the penal statute should be construed 'according to the fair import of their terms, with a view to effect its objects and to promote justice.' [Citations.] Even where statutory language is reasonably susceptible of different interpretations, the construction more favorable to the defendant should be adopted. [Citation.] Here, it is clear that the Legislature intended that defendants charged with special circumstances justifying the imposition of the death penalty be informed of the evidence to be used in aggravation within a reasonable period before the trial commences in order to properly prepare for the penalty phase." (P. 587, italics in original 177 Cal.Rptr. 841.)
The purpose of the statutory notice is to advise an accused of the evidence against him so that he may have a reasonable opportunity to prepare a defense at the penalty trial. The investigation of guilt and penalty issues by the defense usually takes place before the guilt trial begins, since counsel must plan his conduct of the guilt trial with penalty issues in mind. In the ordinary case, for example, the penalty jury is selected before the guilt trial begins, and that jury hears all of the evidence presented at the guilt phase. Consequently, notice delayed until the onset of the penalty trial approaches may come too late for proper investigation and consideration. We therefore conclude that the prosecution's notice of its intent to offer evidence of defendant's threats, given to the defense [222 Cal.Rptr. 181] after the guilt trial had begun, was untimely, and that the evidence in question should have been excluded.
B. Jury Instructions on Mitigating Evidence.
In the case at bar, the defense strategy at the penalty phase was based on evidence of defendant's background and character aimed at invoking compassion on his behalf. His mother, his sisters, and his girlfriend testified that he had helped them throughout their lives, that they loved him, and that they wanted him to live. Two other witnesses testified that defendant had been helpful to them in past years. The trial judge permitted the jury to hear such evidence, but erroneously failed to make clear to the jury its duty to weigh and consider that evidence.
The trial court read to the jury the statutory list of aggravating and mitigating circumstances, concluding with factor (k)--"[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." (Former CALJIC No. 8.84.1.) It then instructed the jury "to consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed," and to return a verdict of death "[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances." (CALJIC No. 8.84.2.) These instructions followed exactly the language of the 1978 death penalty initiative.
As we explained in People v. Lucky (1985) 41 Cal.3d 315, 346, 221 Cal.Rptr. 880, 710 P.2d 959 "[a]n instruction which simply repeats the language of the 1978 statute is inadequate. The statutory language taken as a whole implies that the jury may only weigh and consider the listed aggravating and mitigating factors, and while factor (k) could be interpreted to permit consideration of defendant's character and background evidence, it would more likely be understood to permit consideration only of evidence relating to defendant's moral culpability for the charged crime. The jury instructions should remove 'any legitimate basis for finding ambiguity concerning the factors actually considered' by the jury (Eddings v. Oklahoma, supra, 455 U.S. 104, 119 [102 S.Ct. 869, 879, 71 L.Ed.2d 1] (conc. opn. of O'Connor, J.; People v. Easley, supra, 34 Cal.3d 858, 879 [196 Cal.Rptr. 309, 671 P.2d 813])." (See also People v. Davenport (1985) 41 Cal.3d 247, 283, 221 Cal.Rptr. 794, 710 P.2d 861.) The instructions in the present case do not meet this standard.
The judge in the present case also instructed the jury that "pity and sympathy for the defendant would be proper considerations if you should find them to be warranted in the circumstances." This instruction avoids the error that led us to reverse the penalty judgments in some previous cases (People v. Brown (1985) 40 Cal.3d 512, 220 Cal.Rptr. 637, 709 P.2d 440; People v. Lanphear (1984) 36 Cal.3d 163, 203 Cal.Rptr. 122, 680 P.2d 1081; People v. Easley, supra, 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813) but it does not cure the inadequacy and ambiguity of the other instructions. It is not sufficient to tell the jury that it may consider "sympathy" for the defendant if it is then told to determine the penalty by weighing specific aggravating and mitigating factors, none of which appear to include the facts on which defendant bases his plea for sympathy.
Finally, the judge instructed the jurors in the language of the 1978 act, stating that if the jurors found that aggravating circumstances outweighed mitigating circumstances, you "shall impose a sentence of death." We noted in People v. Brown, supra, 40 Cal.3d 512, 220 Cal.Rptr. 637, 709 P.2d 440, that such an instruction creates a risk that the jurors might decide to impose the death penalty by "a mechanical balancing of aggravating and mitigating factors" (p. 539-40, 220 Cal.Rptr. 637, 709 P.2d 440), even if they did not believe death was the appropriate penalty in the case at bar (see p. 542 and fn. 13, 220 Cal.Rptr. 637, 709 P.2d 440). We noted that such a risk could be eliminated by curative instructions explaining the role of the jury in [222 Cal.Rptr. 182] deciding the appropriate penalty. (P. 545, fn. 17 220 Cal.Rptr. 637, 709 P.2d 440.) No such instruction was given in this case, and the argument by the prosecutor tended to increase the danger that the jury would decide the penalty by mechanical process devoid of normative judgment. (See post, at p. 182-83 of 222 Cal.Rptr., p. 478-79 of 711 P.2d.) C. Prejudicial Error.
Our decision in People v. Robertson (1982) 33 Cal.3d 21, 188 Cal.Rptr. 77, 655 P.2d 279, discussed the test of reversible error at the penalty phase. The lead opinion by Justice Kaus endorsed the standard established by past decisions that "any substantial error occurring during the penalty phase of the trial ... must be deemed to have been prejudicial." (P.54, quoting People v. Hamilton (1963) 60 Cal.2d 105, 135-137, 32 Cal.Rptr. 4, 383 P.2d 412; People v. Hines (1964) 61 Cal.2d 164, 168-170, 37 Cal.Rptr. 622, 390 P.2d 398.) The concurring opinion suggested "substantiality" should imply "a careful consideration whether there is any reasonable possibility that an error affected the verdict." (Robertson, supra, conc. opn. by Broussard, J., 33 Cal.3d at p. 63, 188 Cal.Rptr. 77, 655 P.2d 279; see People v. Davenport, supra, 41 Cal.3d 247, 283-284, 221 Cal.Rptr. 794, 710 P.2d 861.)
We have identified two penalty phase errors in the present case: the erroneous admission of the "death threats," and the failure of the trial court to instruct the jury that it may consider character and background evidence proffered by the defendant in determining whether to impose the death penalty. Both errors were fully exploited by the district attorney. He relied on the inadmissible threats to paint a picture of defendant as a man with a record of uncaring violence. And, emphasizing the duty of the jury to return a verdict of death if the aggravating factors outweighed the mitigating factors, he summarized the relevant factors as if the mitigating character and background evidence proffered by defendant was not a proper subject for jury consideration. When defense counsel sought to impress upon the jurors the gravity of their decision, and to invoke compassion for his client, the prosecutor responded that the sole duty of the jurors was to follow the court's instruction, and return a death verdict if the aggravating factors outweighed the mitigating factors. The erroneous admission of aggravating evidence and the inadequacy of the jury instructions, viewed together, constituted substantial error requiring the reversal of the penalty.
For example, the district attorney argued the following at his closing argument at the penalty phase: "[T]he thing that sticks out most in the case other than what happened here is the defendant's attitude toward the whole thing. It's incredible that anyone could have done what he's done and then dare it again, and then tried to do it again when he talked about Danny and talked about threats to other people. This stuff just over and over again without apparently either caring about it or being concerned with it or being bothered with it."
After listing the aggravating factors, the prosecutor continued: "There's a possibility that there are a couple of mitigating factors in his favor. His age might be a factor. Lack of proof of prior felony conviction is a factor. And that's it. Out of all those factors, that's it." Age and prior felony convictions are listed factors under the 1978 statute. Loving and helpful relationships with family and friends are not a listed factor, and the prosecutor apparently did not consider that such considerations might fit under the catch-all language of factor (k).
V. CONCLUSION.
The evidence shows that defendant intentionally shot four persons during the commission of two robberies; one of the victims died. We here affirm defendant's conviction for murder, with the special circumstance of felony murder. At a minimum, defendant will serve a sentence of life imprisonment without possibility of parole.
[222 Cal.Rptr. 183]At the penalty trial, defendant appealed to the sympathy and mercy of the jury, presenting evidence that he was a loving and helpful man in his relationships with his relatives and his friends. We do not know whether a jury would be persuaded by such evidence to spare his life. But defendant is constitutionally entitled to have the jury consider such evidence, and under the instructions and arguments presented to the jury, we cannot with confidence conclude that the jurors understood that obligation. This defect in the penalty trial, considered in combination with the prosecution's reliance upon evidence that should have been excluded because of untimely notice, leads us to reverse the penalty judgment.
The judgment as to guilt, and the finding of special circumstances, is affirmed. The judgment of death is reversed, and the cause remanded for a new penalty trial consistent with the views expressed herein.
KAUS and REYNOSO, JJ., concur.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
BIRD, C.J., concurs in the judgment only.
MOSK, Justice, concurring and dissenting.
I concur in affirmance of the guilt of defendant, but dissent from reversal of the penalty.
I am satisfied that the prosecution complied with the spirit, if not the letter, of Penal Code section 190.3. The record discloses that the prosecutor told defense counsel even before the case arrived in superior court that defendant had threatened a deputy district attorney and a police officer. In addition, a written notice of the intention to introduce such testimony was filed a full week before commencement of the penalty phase. The trial court conducted a hearing in chambers on the evidence to be admitted in the penalty phase, and was satisfied that defense counsel had been adequately informed of what he faced. I see no reason to reach a contrary conclusion.
Alert to the prevailing views expressed in People v. Lanphear (1984) 36 Cal.3d 163, 203 Cal.Rptr. 122, 680 P.2d 1081, and People v. Easley (1983) 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813 (but see my dissents in both of those cases), the trial judge here expressly advised the jurors that they might consider sympathy for the defendant. That should be adequate to satisfy the Lanphear and Easley majority.
The trial court did not have the benefit of our opinion in People v. Brown (1985) 40 Cal.3d 512, 220 Cal.Rptr. 637, 709 P.2d 440 and thus the jurors were instructed in the words of the 1978 statute that if they found aggravating circumstances to outweigh mitigating circumstances, they "shall" return a verdict of death. As we held later, such advice was improper.
However, the trial court's instruction on sympathy was sufficiently broad to make it clear to the jurors that they were not to indulge in the type of mathematical counting we deplored in Brown. After reminding the jurors that they previously had been instructed not to consider sympathy in the guilt phase, the trial judge distinguished the penalty phase by stating: "I instruct you that in this, the penalty phase, pity and sympathy for the defendant would be proper considerations if you find them to be warranted in the circumstances." Since neither pity nor sympathy are included within the itemized list of aggravating and mitigating circumstances, it is clear the jury was adequately advised that it was not bound by the type of mechanical balancing of enumerated factors we criticized in Brown.
There was no miscarriage of justice (Cal.Const., art. VI, § 13). I would affirm the judgment in its entirety.
GRODIN, J., concurs.
We do not suggest that the prosecutor's argument was misconduct. Rather, we view the argument as illustrating how readily a person relying solely on the statutory language could mistake the duty of the jurors to consider and weigh background and character evidence such as that presented by defendant in this case.