People v. Frye ( 1998 )

MOSK, J.

I generally concur in the opinion of the court.

I write separately because I would reject, at the very threshold, appellant’s contention that the sentence of death imposed on him in the judgment on appeal amounts to cruel and/or unusual punishment, in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution, because of the effect that it has assertedly had on him as he has awaited its execution during years in confinement. “Appellate jurisdiction,” however, “is limited to the four comers of the record on appeal” (In re Carpenter (1995) 9 Cal.4th 634, 646 [38 Cal.Rptr.2d 665, 889 P.2d 985]), and to “matters” that are “properly subject to judicial notice” (People v. Collie (1981) 30 Cal.3d 43, 57, fn. 10 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776]). By its very terms, appellant’s claim, which has arisen postjudgment, goes beyond the record and judicial notice. It is not trivial. But it may not be presented here.¹

1 Whether appellant’s claim is “narrowly framed” (maj. opn., ante, at p. 1030, fn. 5) is open to question. Whether it “may be resolved without reference to external matters” (ibid.) is not. It may not. That is because it is, in fact, based on such “external matters,” including an assertion by appellant that respondent and the superior court “took nearly seven years to obtain a [sufficient] record," and did so only after he “was compelled to force [them] to provide him with transcripts which were correct versions of what transpired in the course of his case.” As such, it is not similar to the point in People v. Hill (1992) 3 Cal.4th 959, 1014 [13 Cal.Rptr.2d 475, 839 P.2d 984], which was a “frontal attack on the validity of the death penalty in all cases” predicated on the “delay inherent in the capital appeal process.”