People v. Phillips ( 1985 )

FEINERMAN (Robert), J.,^* Concurring and Dissenting.

I concur in affirming the judgment on the guilt phase and the special circumstance finding. I respectfully dissent from the reversal of the judgment on the penalty phase. In my opinion, there is no reasonable possibility that any errors committed during the penalty phase of defendant’s trial affected the jury’s penalty determination.

The defendant committed a deliberate and monstrous murder for monetary gain and attempted to execute a second victim. After defendant’s arrest, he planned the murder of the second victim and three other prosecution witnesses—Richard Graybill, a longtime friend, Sharon Colman, defendant’s girlfriend, and Barbara Hollingshead, defendant’s mother. No mitigating circumstances were presented on behalf of the defendant. The evidence in aggravation presented to the jury in the penalty phase regarding defendant’s character and background overwhelmingly demonstrated that the defendant was the personification of evil. Furthermore, the defendant admitted that he was involved with others in cocaine trafficking and had shot a man in Mexico.¹

To state, as the majority has, that defendant’s jailhouse letters containing directions to “knock out,” “nail,” and “blast” four prosecution witnesses is “somewhat ambiguous as to the conduct it solicits” is specious reasoning. Ambiguity cannot be properly determined in a vacuum. Considering the terms “knock out,” “nail,” and “blast” separately, as isolated words, each term may appear ambiguous. Considering them together in the circumstances in which they were used, their meaning is chillingly clear. Logic, common sense and the realities of everyday life compel the conclusion that when “A,” a murderer and drug dealer, solicits “B” to “knock out,” “nail” or “blast” “C,” whose testimony will result in “A’s” conviction, “A” wants “C” dead. Any other conclusion is unreasonable.

The majority’s argument that there was a reasonable doubt whether the defendant was “actually serious” about going through with his scheme to kill the prosecution witnesses is unconvincing. The defendant was a determined and vengeful survivalist. When he wrote Exhibit 20, defendant was lodged in a jail in Utah and was awaiting extradition to California to stand trial for the attempted murder of Ron Rose and the murder of Rose’s friend, Bruce Bartulis. Graybill and Colman had decided to cooperate with law enforcement and Hollingshead, defendant’s mother, was at home when the defendant arrived with Colman after the commission of the crimes. Manifestly, it was in the defendant’s best interests to eliminate all of these witnesses before they had a chance to testify against him at his trial.

Although the jury may have erroneously considered certain incidents of purported other criminal activity, those events (i:e., the “CW Murder Plan,” the “Solder Plan,” the “Industrial Burglary Plan,”) were of relative minor significance compared to the other incidents which the jury could properly consider as other criminal activity (i.e., defendant’s letters soliciting the murder of four prosecution witnesses, including his own mother, defendant’s admission that he had shot a man in Mexico and defendant’s admission that he had been involved with others in cocaine trafficking). A search for the golden fleece of the “perfect trial” is inevitably doomed to failure. “‘[A] defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.” (Brown v. United States (1973) 411 U.S. 223, 231 [36 L.Ed.2d 208, 215, 93 S.Ct. 1565].) It is also important to recognize that “extreme justice is often injustice.”²

I recognize that the highest standard of care must be utilized in reviewing the record in the penalty phase of a capital case. It is an awesome responsibility to be part of a process that can result in the taking of a human life. But we also have a concomitant responsibility to society as a whole. As Justice Benjamin N. Cardozo stated in Snyder v. Mass. (1934) 291 U.S. 97 at page 122 [78 L.Ed. 674, 687, 54 S.Ct. 330, 90 A.L.R. 575], “But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”

Given the backdrop of a record that highlights the fact that not one scintilla of evidence in mitigation was introduced on behalf of the defendant in the penalty phase, I do not believe there is a reasonable possibility that the minor incidents improperly admitted as other criminal activity or the omission of a reasonable doubt instruction as to those incidents properly considered as other criminal activity could have made a difference in the jury’s verdict in the penalty phase.

Mosk, J., concurred in this disposition only.

Respondent’s petition for a rehearing was denied February 20, 1986. Mosk, J., Lucas, J., and Panelli, J., were of the opinion that the petition should be granted.

* Presiding Justice, Court of Appeal, Second District, Division Five, assigned by the Chairperson of the Judicial Council.

1 Defendant testified on both direct and cross-examination, as part of his alibi, that he was involved with others in cocaine trafficking, and testified on cross-examination that he had shot a man in Mexico. I believe both of these admissions can properly be considered as other criminal activity under former Penal Code section 190.3. Clearly, no reasonable doubt instruction should be required at the penalty phase in regard to evidence of other criminal activity where the evidence of those other crimes was introduced and relied on by the defendant himself.

2 Racine, La Thebaide (1664) act IV, scene 3; see also Voltaire, Oedipe (1718) act III, scene 3.