People v. Brown

MOSK, J., Concurring and Dissenting.

I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance finding.

I also agree with the majority that the trial judge failed to fulfill his responsibilities under Penal Code section 190.4 when he neither expressly disposed of defendant’s verdict-modification application nor stated his reasons for what must be deemed an implied denial. I also believe that he erred under that provision by failing to “make an independent determination whether imposition of the death penalty upon the defendant is proper in light of the relevant evidence and the applicable law.” (People v. Rodriguez (1986) 42 Cal.3d 730, 793 [230 Cal.Rptr. 667, 726 P.2d 113].) Failure to do so, the Rodriguez court noted, might raise questions of federal constitutional error. (Id. at p. 794, citing People v. Frierson (1979) 25 Cal. 3d 142, 178-179 [158 Cal.Rptr. 281, 599 P.2d 587].)

I dissent, however, from the disposition concerning the judgment as to penalty. As I shall explain, I am of the opinion that the jury was not adequately informed of its responsibility to consider all the mitigating evidence introduced by defendant, and that as a result the judgment of death should be reversed and the cause remanded for new penalty proceedings. The limited remand ordered by the majority is inadequate.

I agree with the majority that our task on remand after the United States Supreme Court reversed the judgment in People v. Brown (1985) 40 CaL3d 512 [220 Cal.Rptr. 637, 709 P.2d 440], in California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837], is defined by Justice O’Connor’s concurring opinion in that decision.

“On remand, the California Supreme Court should determine whether the jury instructions, taken as a whole, and considered in combination with the prosecutor’s closing argument, adequately informed the jury of its responsibility to consider all of the mitigating evidence introduced by the [defendant]. The jury was given instruction 8.84.1, 1 California Jury Instructions, Criminal (4th ed. 1979) (CALJIC), which lists the specific aggravating and mitigating factors the sentencer is to consider in determining punishment. Only one subsection of that instruction even arguably applies to the nonstatutory mitigating factors: ‘Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.’ CALJIC 8.84.1(k). The [defendant] contends that the jury might have understood this instruction as mandating consideration only of mitigating evidence about the circumstances of the crime, and not evidence about the defendant’s background and character. Moreover, in his closing remarks, the prosecutor in this case may have suggested to the jury that it must ignore the mitigating evidence about the [defendant’s background and character. In combination with the instructions, the comments of the prosecutor may create a ‘legitimate basis for finding ambiguity concerning the factors actually considered by the’ jury.” (California v. Brown, supra, 479 U.S. at p. 546 [93 L.Ed.2d at p. 943, 107 S.Ct. at p. 842] (conc. opn. of O’Connor, J.).)

I cannot agree with the majority that when we conduct the foregoing analysis in this case we are able to conclude that “the jury was adequately informed of its obligation to consider all of the mitigating evidence introduced by the [defendant]. . . .” (California v. Brown, supra, 479 U.S. at p. 546 [93 L.Ed.2d at p. 943, 107 S.Ct. at p. 842] (conc. opn. of O’Connor, J.).)

Construing the prosecutor’s comments in their context, I find myself compelled to conclude that the jury must have understood the words in accordance with their plain meaning—to the effect that the mitigating evidence of defendant’s character and background was simply immaterial. Hence, I cannot accept the majority’s assertion that the prosecutor’s remarks amounted to “an implicit concession that all the defense evidence was relevant, if not persuasive.” (Maj. opn., ante, p. 1256.)

Specifically, in commenting on CALJIC No. 8.84.1(k) the prosecutor told the jurors all but expressly that they could not consider defendant’s character and background evidence. His remarks were as follows:

“Finally, ladies and gentlemen, there is the factor of other circumstances which extenuate the gravity of the crime, even though not a legal excuse, if present, it might mitigate, if absent there is no mitigation.

“There is no evidence, ladies and gentlemen, I would suggest to you, which extenuates the gravity of this crime, the killing of Susan J[.] that has been presented. No explanation, no remorse and I might comment at this time regarding the other witnesses outside of [a psychiatrist] called by the defense.

“[Defense counsel] brought to you in two days a parade of relatives who admitted that they were biased witnesses in the case, who told us a lot about the defendant from their point of view. They told us what a good boy he was at the time in his youth when they knew him. And he brought them gifts and that he cared after his siblings. They did not testify, ladies and gentlemen, regarding any of the factors which relate to your decision in this case. Their testimony here, ladies and gentlemen, I would suggest was a blatant attempt by the defense to inject personal feelings in the case, to make the defendant appear human, to make you feel for the defendant, and although that is admirable in the context of an advocate trying to do his job, you ladies and gentlemen must steel yourselves against those kinds of feelings in reaching a decision in this case.” (Italics added.)

I recognize that in his argument defense counsel urged the jurors to consider the mitigating evidence about defendant’s background and character as they chose between life and death. But account must be taken of the court’s potentially misleading CALJIC No. 8.84.1(k) instruction and the prosecutor’s actually misleading argument. Account must also be taken of the weight that jurors are presumed to give to the words of the trial judge (see, e.g., People v. Rodriguez, supra, 42 Cal.3d at p. 804 (dis. opn. of Mosk, J.)) and to the words of the prosecutor (see, e.g., People v. Talle (1952) 111 Cal.App.2d 650, 677 [245 P.2d 633] (per Peters, P. J.)). In view of the foregoing, I am of the opinion that defense counsel’s argument would have been heard by the jury as a plea to consider evidence that it was required by law to ignore—and hence would have been rejected out of hand.

I recognize that in the instructions the jurors were told generally and without specification that they should consider “all of the evidence” admitted at both the guilt and penalty phases of the trial. But such a charge falls far short of adequately informing them that they could consider defendant’s background and character evidence in mitigation of the penalty of death.

Accordingly, error of federal constitutional dimension occurred in this case. The jury was not “adequately informed ... of its responsibility to consider all of the mitigating evidence introduced by the [defendant]. . . . In combination with the instructions, the comments of the prosecutor . . . create a ‘legitimate basis for finding ambiguity concerning the factors actually considered by the’ jury.” (California v. Brown, supra, 479 U.S. at p. 546 [93 L.Ed.2d at p. 943, 107 S.Ct. at p. 842] (conc. opn. of O’Connor, J.).)

On this record I cannot conclude that the error was harmless. In Hitchcock v. Dugger (1987) 481 U.S. 393, 399 [95 L.Ed.2d 347, 353, 107 S.Ct. 1821, 1824], the United States Supreme Court suggested that the kind of error under consideration here may be held nonprejudicial only when “it had no effect on the jury . . . .” (Cf. Satterwhite v. Texas (1988) 486 U.S. _, _-_ [100 L.Ed.2d 284, 108, S. Ct. 1792] (holding that errors of federal constitutional dimension occurring at the penalty phase of a capital trial are generally subject to harmless-error review under the beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065].) In view of the strong mitigating evidence about defendant’s background and character—including his severe emotional problems, his generally kind and nonviolent nature, and his remorse for the rape of Kelly P.—I cannot conclude, with the confidence required by the Eighth Amendment, that the error here did not contribute to the verdict.

For the foregoing reasons, I would reverse the judgment of death and remand for new penalty proceedings.

Broussard, J., concurred.

Appellant’s petition for a rehearing was denied September 15, 1988. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.