People v. Ray , 13 Cal. 4th 313 ( 1996 )

GEORGE, C. J.

I concur in the majority’s affirmance of the guilt and penalty judgments. I write separately because I believe that, for the guidance of trial courts and counsel in pending capital cases, it is appropriate to address directly on the merits defendant’s novel claim that, at the penalty phase of a capital case, the prosecution is precluded from proving “[t]he presence ... of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence,” for purposes of Penal Code section 190.3, factor (b),¹ through the introduction of evidence that the defendant has been convicted of a crime involving force or violence or the threat of force or violence, and that the prosecution instead is required, even when a defendant has suffered such a conviction, to call the witnesses who testified at the earlier trial and in essence to retry the earlier case. (See maj. opn., ante, at pp. 348-350.) As I shall explain, I believe that defendant’s contention clearly lacks merit and that it is advisable at this point to put to rest any possible doubts regarding this question.

I

As originally enacted in 1872, section 190 provided for the imposition of capital punishment as the penalty for first degree murder. Two years later, in 1874, section 190 was amended to provide an alternative penalty of life imprisonment “at the discretion of the jury.” For decades thereafter, this discretion was not subject to any statutory limitations or guidance.

In People v. Friend (1957) 47 Cal.2d 749 [306 P.2d 463], we commented upon the lack of guidance or information afforded the jury in choosing the appropriate sentence in a capital case: “The character and scope of evidence pertinent to punishment which should be received in a case wherein the jury is required to fix the penalty, is a subject which could well receive legislative attention. This state has long since accepted the view (as recognized and implemented by the indeterminate sentence laws and other acts) that, generally speaking, punishment should be fitted to the perpetrator of the crime, not merely the crime. In tailoring punishment for most offenders the controlling agency has the benefit of a complete study of the person. In the whole life stray the particular crime is an incident, a controlling one for the time being, probably, but only one of many which the board considers in reaching its ultimate conclusion. It seems, therefore, incongruous that in a case of first degree murder the jury conceivably may be given the responsibility of selecting life imprisonment or death as punishment, but in making that determination may be denied the full measure of enlightenment which for less drastic punishments is available to the administrative board. It appears that in this respect the law, when and if so applied, continues the outmoded view that punishment must inexorably fit the crime, not the offender.” (Id. at p. 763, fn. 7.)

Our observations in Friend led to the enactment that same year (1957) of former section 190.1, providing for separate trials of the guilt and penalty issues in a capital proceeding. (See 3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crimes, § 1592, pp. 1898-1899.) As enacted in 1957, former section 190.1 provided that “[ejvidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or mitigation of the penalty.” (Stats. 1957, ch. 1968, § 2, pp. 3509-3510, italics added.) Shortly after its enactment, we held that this statute “embodie[d] the broad, liberal rule on admission of evidence that has always existed where a defendant has pleaded guilty and the only issues being tried relate to the degree of the crime and the penalty to be imposed.” (People v. Jones (1959) 52 Cal.2d 636, 647 [343 P.2d 577].)

From the outset of the adoption of bifurcated capital proceedings in California, it has been consistently recognized that, at the penalty phase, the prosecution may introduce evidence of a defendant’s prior convictions to bring before the sentencing jury the facts concerning the defendant’s past conduct. (See, e.g., People v. Pike (1962) 58 Cal.2d 70, 94, fn. 14 [22 Cal.Rptr. 664, 372 P.2d 656] [“The evidence of the prior conviction, of course, was admissible on the penalty phase.”]; People v. Robillard (1960) 55 Cal.2d 88, 100 [10 Cal.Rptr. 167, 358 P.2d 295, 82 A.L.R.2d 1086].) Indeed, insofar as this court’s decisions disclose, the admissibility of a defendant’s prior convictions for this purpose at the penalty phase of a death penalty proceeding never was questioned; the only issues that arose in this regard concerned the extent to which the prosecution could go beyond evidence of prior convictions, either to present additional evidence in instances in which there had been a conviction (see, e.g., People v. Purvis (1959) 52 Cal.2d 871, 880-882 [346 P.2d 22]), or to introduce evidence of prior criminal conduct of which the defendant had not been convicted (see, e.g., People v. Mathis (1965) 63 Cal.2d 416, 427 [46 Cal.Rptr. 785, 406 P.2d 65]).

Thus, for example, in concluding in People v. Terry (1964) 61 Cal.2d 137 [37 Cal.Rptr. 605, 390 P.2d 381], that the prosecution at the penalty phase could not introduce evidence showing simply that in the past an information had been filed charging the defendant with a criminal offense, the court explained: “Although an information is more probative of guilt than arrest because it proceeds one step further in the criminal process, in neither situation has a jury found beyond reasonable doubt that the defendant has committed the alleged offense. Short of this safeguard the use of incidents in the preliminary stages of the criminal process as evidence to prove that a defendant has committed an alleged criminal act becomes too prejudicial when weighed against its probative value.” (Id. at p. 149, italics added.) This reasoning makes it clear, of course, that the court in Terry took for granted that the record of a prior conviction, which signified that a jury had found beyond a reasonable doubt that the defendant had committed the alleged offense, was sufficiently reliable to establish the defendant’s conduct for purposes of the penalty phase.

Justice Mosk’s dissenting opinion in People v. McClellan (1969) 71 Cal.2d 793, 812 [80 Cal.Rptr. 31, 457 P.2d 871] makes this point even more explicitly. In McClellan, Justice Mosk dissented from the majority’s conclusion that when the prosecution, at the penalty phase, introduces evidence that the defendant engaged in prior crimes of which he had not been convicted, the jury must be instructed that it should not consider the prior crimes unless it finds that the crimes have been proven beyond a reasonable doubt. In the course of his dissent, Justice Mosk observed: “For efficient trial procedure, trial courts and counsel are entitled to know how prior crimes are to be established at the penalty trial; the majority offer little assistance. Certainly a certified record of conviction will suffice. But what of proof by, for example, eyewitness testimony [citation] or confession following independent proof of the corpus delicti [citation] or testimony by an accomplice, as in this case? It is clear that the Terry opinion . . . did not purport to exclude all evidence of prior crimes except formal convictions . . . .” (71 Cal.2d at p. 818 (dis. opn. of Mosk, J.).)

Thus, a review of this court’s decisions establishes beyond question that, under the initial legislation establishing California’s bifurcated capital proceedings, the prosecution, at the penalty phase of a death penalty trial, could rely upon evidence of prior convictions to establish that the defendant had engaged in prior criminal activity. (See generally, Comment, The California Penalty Trial (1964) 52 Cal.L.Rev. 386, 394-398.)

II

In 1972, this court concluded that the then existing California death penalty statute was unconstitutional. (See People v. Anderson (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880]; see also Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726].) In 1976, the United States Supreme Court handed down a group of decisions that provided guidance as to the requirements of a constitutionally permissible death penalty statute (see Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909]; Proffitt v. Florida (1976) 428 U.S. 242 [49 L.Ed.2d 913, 96 S.Ct. 2960]; Jurek v. Texas (1976) 428 U.S. 262 [49 L.Ed.2d 929, 96 S.Ct. 2950]; Woodson v. North Carolina (1976) 428 U.S. 280 [49 L.Ed.2d 944, 96 S.Ct. 2978]; Roberts v. Louisiana (1976) 428 U.S. 325 [49 L.Ed.2d 974, 96 S.Ct. 3001]), and, shortly thereafter, this court, relying upon these recently decided United States Supreme Court decisions, concluded that the initial successor to the death penalty statute that had been invalidated in Anderson also was unconstitutional. (See Rockwell v. Superior Court (1976) 18 Cal.3d 420 [134 Cal.Rptr. 650, 556 P.2d 1101].)

The following year, the Legislature reinstated the death penalty in California through the enactment of the 1977 death penalty law. (Stats. 1977, ch. 316, §§ 1-26, pp. 1255-1266.) Among other features, the 1977 death penalty law set forth (in section 190.3) a list of factors that the jury (or the judge, if a jury is waived) is to consider at the penalty phase in choosing between the alternative sentences of death or life without possibility of parole. As enacted in 1977, section 190.3 included factor (b)—“[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence”—but did not include any other factor (such as the current factor (c), subsequently added in 1978) that specifically referred to criminal “convictions” sustained by the defendant.

The language and legislative history of section 190.3 as adopted in 1977 make it clear that, in enacting section 190.3, factor (b), the Legislature intended to authorize the prosecution to introduce not only evidence of a defendant’s conviction of a crime involving the use or threat of force or violence, but also evidence that the defendant had engaged in such criminal activity without having been convicted of a crime (provided the defendant had not been prosecuted and acquitted of the crime). (See People v. Phillips (1985) 41 Cal.3d 29, 69-72 [222 Cal.Rptr. 127, 711 P.2d 423] (lead opn. by Reynoso, J.) [reviewing the legislative history of section 190.3’s reference to “criminal activity,” as enacted in 1977].)

In this regard, the first three paragraphs of the 1977 version of section 190.3—which preceded the listing of the specified aggravating and mitigating factors and concerned the evidence that could be presented at the penalty phase—are particularly instructive. Those paragraphs provided in relevant part: “In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to . . . the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the expressed or implied threat to use force or violence, and the defendant’s character, background, [and] history ....[*][] However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the expressed or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction, However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and was acquitted. The restriction on the use of this evidence is intended to apply only to proceedings conducted pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in other proceedings.” (Stats. 1977, ch. 316, § 11, pp. 1258-1259, italics added.)

By providing in section 190.3 that “[a]s used in this section, criminal activity does not require a conviction” (italics added), the Legislature made it clear that the prosecution could present evidence of criminal activity by the defendant involving the use or threat of force or violence even if that activity had not resulted in a conviction. At the same time, the Legislature implicitly confirmed that when the defendant had been convicted of a crime involving the use or threat of force or violence, the prosecution, of course, could rely upon that conviction to establish “the presence ... of criminal activity" for purposes of section 190.3, factor (b). Particularly when this language of the 1977 version of section 190.3 is considered in light of the consistent practice under the prior death penalty law, I believe it would be absurd to interpret the 1977 statute as precluding the prosecution from relying upon a prior conviction of a crime involving the use or threat of force or violence to prove the presence of other violent criminal activity within the meaning of section 190.3, factor (b), and instead as requiring the prosecution to try anew every prior violent crime offered in aggravation under factor (b), even when the defendant already had been convicted of the crime.

Such an interpretation would fly in the face of past practice and would be quite impractical, compelling the prosecution to relitigate fully—through the testimony of victims and witnesses and the presentation of physical and documentary evidence—each violent crime of which the defendant already had been convicted, and, at the same time, prohibiting the prosecution from bringing to the jury’s attention at the penalty phase other violent criminal activity of the defendant that had resulted in a conviction, whenever the physical evidence or witnesses presented in the earlier proceedings no longer were available. (As noted, section 190.3, as it read in 1977, contained no separate factor referring explicitly to the defendant’s prior “convictions.”) Nothing in the language or history of the 1977 legislation supports the claim that the Legislature intended to impose such limitations with regard to the proof of prior criminal activity of which the defendant had been convicted.

In 1978, section 190.3 was amended to expand the list of aggravating and mitigating factors, adding the present factor (c), which permits the sentencer to consider “the presence or absence of any prior felony conviction.” Unlike factor (b), factor (c) is limited to crimes of which the defendant has been convicted (indeed, to felony convictions sustained by the defendant prior to the commission of the capital homicide (see People v. Balderas (1985) 41 Cal.3d 144, 201-203 [222 Cal.Rptr. 184, 711 P.2d 480])), but the provision at the same time encompasses all felony convictions, whether or not they involve the use or threat of force or violence. Significantly, nothing in the enactment of factor (c) in 1978 indicates any intent to modify the meaning or application of section 190.3, factor (b).

Accordingly, I believe it is clear both from the language and history of section 190.3, factor (b), as well as the decisional law that preceded its enactment, that the prosecution may establish the presence of “criminal activity” within the meaning of that provision by the introduction of the record of a conviction that involves the use or threat of force or violence. Although the statute does not limit the prosecution to the introduction of a record of conviction when the defendant has been convicted of a crime involving the use or threat of force or violence, it permits the prosecution to introduce such a conviction to establish the presence of other violent criminal activity committed by the defendant under section 190.3, factor (b).

Ill

The conclusion set forth above is consistent with a host of this court’s prior decisions interpreting and applying the current death penalty law. (See, e.g., People v. Webster (1991) 54 Cal.3d 411, 454 [285 Cal.Rptr. 31, 814 P.2d 1273]; People v. Frierson (1991) 53 Cal.3d 730, 747 [280 Cal.Rptr. 440, 808 P.2d 1197]; People v. Daniels (1991) 52 Cal.3d 815, 880-881 [277 Cal.Rptr. 122, 802 P.2d 906]; People v. Hayes (1990) 52 Cal.3d 577, 632-633 [276 Cal.Rptr. 874, 802 P.2d 376]; People v. Whitt (1990) 51 Cal.3d 620, 653-654, fn. 26 [274 Cal.Rptr. 252, 798 P.2d 849]; People v. Lewis (1990) 50 Cal.3d 262, 280 [266 Cal.Rptr. 834, 786 P.2d 892]; People v. Lucky (1988) 45 Cal.3d 259, 295 [247 Cal.Rptr. 1, 753 P.2d 1052]; People v. Melton (1988) 44 Cal.3d 713, 754-757 & fn. 17 [244 Cal.Rptr. 867, 750 P.2d 741]; People v. Gates (1987) 43 Cal.3d 1168, 1201-1202 [240 Cal.Rptr. 666, 743 P.2d 301] [failure to give reasonable doubt instruction harmless where defendant had been convicted of other crimes].)²

IV

Contrary to defendant’s contention, this court’s recent decision in People v. Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr.2d 418, 841 P.2d 938] provides no basis for questioning the above authority. Although Wheeler observed that, as a general matter, a record of conviction is “hearsay” when offered as evidence to prove that the underlying criminal conduct was committed (id. at p. 298), and our decision applied that general legal principle in resolving the question whether a misdemeanor conviction is admissible for impeachment purposes (id. at pp. 299-300), Wheeler did not consider the permissible use of evidence of a prior conviction in a sentencing context, and did not examine the history of the use of prior convictions in California penalty phase proceedings or the language or legislative intent of section 190.3. Whatever may be true with regard to the limitations on the use of prior convictions in other contexts, I believe it is clear that, under the provisions of the governing death penalty statute, the prosecution may rely upon a prior conviction of a crime involving the use or threat of force or violence to establish the presence of criminal activity involving the use or threat of force or violence for purposes of section 190.3, factor (b).

Baxter, J., Werdegar, J., Lucas, J.,^* and Arabian, J.,^† concurred.

1 Unless otherwise specified, all further statutory references are to the Penal Code.

2 There is language in one isolated decision that appears to be inconsistent with this conclusion. The opinion in People v. Champion (1995) 9 Cal.4th 879, 937 [39 Cal.Rptr.2d 547, 891 P.2d 93] indicates that although evidence of a defendant’s violent criminal activity underlying a juvenile adjudication of a violent crime is admissible to establish “criminal activity” under section 190.3, factor (b), the fact of the adjudication itself is inadmissible. In reaching this conclusion in Champion, however, the court did not consider the extensive background and legislative history of section 190.3, factor (b), reviewed above, and did not take into account the numerous decisions, cited in the text, in which our court has held that when a defendant has been convicted of a violent crime, both the conviction and the facts underlying the conviction are admissible to establish the presence of violent criminal activity for purposes of factor (b). Thus, to the extent the discussion in Champion is inconsistent with the above conclusion, I believe it is incorrect and should not be followed.

* Retired Chief Justice of the Supreme Court sitting under assignment by the Acting Chairperson of the Judicial Council.

† Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.