Rehearing Granted Feb. 23, 1983.
For Opinion on Rehearing see, 196 Cal.Rptr. 309, 671 P.2d 813.
Opinion on pages 65-114 omitted. [*]
Mosk, J., concurred and filed statement.
Kaus, J., concurred and filed opinion.
Bird, C.J., and Broussard, J., filed opinions concurring and dissenting.
[187 Cal.Rptr. 749]Roger S. Hanson, Santa Ana, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien and William D. Stein, Asst. Attys. Gen., Gloria F. DeHart, Herbert F. Wilkinson, W. Eric Collins and John B. Moy, Deputy Attys. Gen., for plaintiff and respondent.
This is an automatic appeal from a judgment imposing a penalty of death. (See Pen.Code, § 1239, subd. (b); unless otherwise indicated, all statutory references are to that code.) Defendant raises numerous claims of error occurring at the guilt and penalty phases of his trial. We have concluded that none of these claims has merit, and that the judgment should be affirmed.
I. FACTUAL BACKGROUND
Defendant Elbert Lee Easley was convicted by a jury of the first degree murders of Reiner and Sigrid Junghans. (§§ 187, 189.) The jury found that defendant used a deadly weapon, a "pick type instrument," in the commission of the murders. (§ 12022.) The jury also found as special circumstances (1) the murders were intentional and carried out pursuant to an agreement to accept valuable consideration from a person other than the victims (former § 190.2, subd. (a)), and (2) defendant personally committed more than one offense of murder (former § 190.2, subd. (c)(5)). The jury fixed the penalty at death.
We describe the evidentiary web revealed at trial. Reiner and Sigrid Junghans were killed in Modesto on the evening of October 14, 1978. Each was stabbed repeatedly in the head and chest, during which time Sigrid had a rubber ball in her mouth. The pathologist testified that Reiner died from the stab wounds, while Sigrid died from a combination of stab wounds and suffocation caused by the rubber ball.
The prosecution's case rested on the theory that a corporate power struggle had developed between Reiner Junghans and codefendant, [187 Cal.Rptr. 750] Joseph Penka. Two former employees, Raymond Smith (Smith) and Donald Davis (Davis), testified that Penka contracted with them to arrange Reiner's death and that they then contacted Westmoreland, defendant's brother-in-law. Westmoreland testified that he hired defendant to kill Reiner.
Penka's business associate testified at length about the dispute between Penka and Reiner, which stemmed from a power struggle among three corporations in which Penka owned stock. He and Reiner were the principal shareholders in one of those corporations, IMMCO, and Penka was repeatedly frustrated in his attempt to wrest control of IMMCO from Reiner. In February 1978, he threatened to "get" those who had opposed him, including Reiner.
Smith and Davis worked for IMMCO until February 1978, when Reiner fired them. One month later, they were arrested and charged with the theft of scrap metal from IMMCO. While departing from a hearing on the theft charge, Penka said to Davis and Smith, "Reiner is going to get his one way or the other." Smith said "The other?" and Penka responded with a threatening gesture.
About two months later, at Davis' urging, Smith called Penka to ask about Reiner. Penka said he was still interested in "taking care of the other," and asked Smith to see what he could do. Smith negotiated with Penka, eventually arriving at a price of $12,500. Penka paid him a down payment of $4,000. Smith made arrangements to have Reiner killed, but the plans fell through.
In late September, Smith and Davis contacted Westmoreland, who agreed to arrange the killing. He went to Fresno to talk to defendant, who said he would kill Reiner for $4,000.
Westmoreland told Davis that he did not have time to do it himself, but would "get Elbert to do it." Smith and Davis located the Junghans' home, and pointed it out to Westmoreland, who showed it to defendant in early October. They agreed that Reiner would be killed by October 15.
On October 13, Penka asked Davis to delay the killing until February. Davis told him it might be too late. Also on October 13, defendant went with his girlfriend, Lorrie Ross, to a farm near Fresno where he obtained baling wire, cutting it with a tool resembling a pair of pliers. At some point during that day, he pawned a carpentry tool, an air nailer, for $30. He used the money to purchase gasoline for his car and drove to Modesto, arriving at Westmoreland's house late that night. Westmoreland testified that he saw baling wire in defendant's bag.
Defendant told Westmoreland he needed a gun. Westmoreland went to see Davis early the next morning, October 14, and Davis gave him a sawed-off shotgun which Davis had bought from his brother Kenneth earlier that morning. Davis himself had sawed off the gun, telling his brother that he was going to sell it to "a couple of guys from Texas."
Westmoreland delivered the gun, wrapped in a sweater, to defendant who told him that he would hide the gun in the sweater until the door was opened, then pull it out and use it to force entry into the house. He practiced handling the gun and sweater.
That same morning, Westmoreland and defendant purchased an icepick and two rubber balls. At approximately noon, defendant left Westmoreland's home with baling wire in his belt loops, carrying the shotgun and icepick. He returned in half an hour, saying that Reiner was not home.
Defendant left again about 5:30 or 6 p.m. He called Westmoreland between 8 and 8:30 p.m. and said it was over. Westmoreland met him at a store, where defendant said he had killed Reiner and Sigrid, and gave Westmoreland Reiner's wallet. Westmoreland directed defendant to wait for him at a diner and drove to Davis' house. He told Davis the Junghans were dead and "Elbert wants his money." Davis called Penka's house several times, but received no answer. He eventually left a message with a woman at the house. About 10 p.m. Penka returned [187 Cal.Rptr. 751] Davis' call and arranged to meet him. Within 10 minutes Penka arrived with $5,000. Davis gave the money to Westmoreland, who kept $1,000 and gave the remainder to defendant.
A bank official testified that she cashed two checks totalling $5,000 for Penka on October 6. She gave him bundles of $20 bills, fastened together with rubber bands.
Lorrie Ross testified that upon his arrival at her home in Fresno at 11 or 12 o'clock on the night of October 14, defendant showed her an envelope containing $4,000 in $20 bills secured by rubber bands, and told her he had robbed a bar. The next day, they visited defendant's uncle and repaid him $600 that defendant had borrowed from him, paying it entirely in $20 bills. Defendant also rented an apartment, bought a headstone for his daughter's grave for $350, spent $100 at a department store, $75 for clothing and $100 for groceries, and gave $200 to Ross' relatives. He and Ross spent two nights at a motel and ate at restaurants, and on October 17, purchased a car for $1,556, paying with $20 bills.
The bodies of Reiner and Sigrid were discovered on October 16. Baling wire was found wrapped loosely around one of Sigrid's wrists and a rubber ball was in her mouth. Reiner's hands and feet were tied with similar wire and a rubber ball was next to his body. Four loose pieces of baling wire were found outside their home. Newspapers dated October 15 and 16 were at their front door. A friend testified that she had talked to them at approximately 7:15 p.m. on October 14, and that it was agreed that they would pick her up at her home at 7:30. When they did not arrive, she called their home repeatedly, beginning at 8 p.m., but received no answer. Based on this information and the condition of the bodies, the pathologist concluded that they had been killed on the evening of October 14.
The police found a small piece of paper on the floor near Sigrid's body, containing the name, "Dave Balch," and two addresses. (Dave Balch was never identified at trial. Westmoreland testified that defendant had planned to obtain entry to the Junghans' home by showing a note to the person who answered the door and asking for directions.) A fingerprint on this paper was identified as defendant's. The officers also discovered a shotgun, bearing Kenneth Davis' fingerprint, on the kitchen table. They were unable to locate Reiner's wallet.
On November 2, 1978, the police executed a search warrant for defendant's apartment and his two cars. They seized a pair of wire cutters from one of the automobiles, and a state criminologist testified that the markings on the wire cutters matched those on the baling wire removed from the victims' bodies, concluding that the wire cutters had been used to cut the baling wire.
Testifying in his own behalf defendant asserted his innocence. He denied having had any conversations with Smith, Davis or Westmoreland concerning any killing. He acknowledged visiting Westmoreland on October 13 and 14 and although Westmoreland borrowed his car, defendant did not leave the house. Defendant spent the evening of the 14th at Jalisco's restaurant in Fresno, and a witness Jose Hernandez testified that he remembered seeing defendant at Jalisco's on the evening of October 14.
Defendant was unable to explain telephone company records which revealed a call at 6 p.m. on October 14 from Westmoreland's residence in Modesto to the halfway house in Fresno where defendant then lived. Records at the halfway house indicated that defendant had called to check in about 6 p.m. on that evening.
Defendant testified that he had $2,880 in cash, mostly in $20 bills, on the weekend of October 14, a combination of loans and payment for his work as a carpenter. He said that he had pawned the air nailer because he had left his money at Ross' house and needed cash to purchase gasoline.
He denied that he had purchased rubber balls or an icepick with Westmoreland, or had owned wire cutters such as those found in his car. He explained that he went with Ross to obtain baling wire in order to fix the muffler and license plate on his car. [187 Cal.Rptr. 752] Kathy Ross, Lorrie's sister, confirmed that defendant had told her that he needed baling wire to fix his muffler.
On July 5, 1979, the jury found defendant guilty of both murders with special circumstances.
At the penalty phase of the trial, the prosecution presented evidence of defendant's prior criminal activity (see former § 190.3, subd. (b)), namely, the arson for hire of the Chicken Ranch brothel in Pahrump, Nevada.
The evidence included a telegram containing the message, "You have a job over here" sent to defendant by Bill Martin, together with a $50 money order. There was evidence tending to show that defendant had been in Nevada, staying with Bill Martin, in June 1978. Further evidence indicated that Martin, who owned a competitive brothel, was engaged in a conspiracy with others either to extort money from the owner of the Chicken Ranch or to close it.
An employee of the Chicken Ranch brothel testified that on the night of June 10, 1978, a man ran into the brothel and threw something inside. The building immediately burst into flames. She thereupon wakened the occupants, all of whom escaped safely. The employee first testified that she had not seen the man's face and could not identify him, but subsequently testified she remembered the man had a long nose and resembled defendant.
Ross testified that defendant left for Las Vegas in April or May of 1978. Meeting again with her in late May or June in a motel in Fresno, he showed her approximately $700, and said he had "burnt down a whorehouse" called "the Chicken Ranch."
Defendant's mother, father and three children testified that he was a nonviolent and attentive son and father who was a faithful attendant at church.
The jury returned a verdict of death. This appeal follows automatically. (See § 1239, subd. (b).)
II. GUILT PHASE ERRORS
Four claims of error in the guilt phase of his trial are asserted.
A. Exclusion of Jurors
Defendant argues that the exclusion for cause of prospective jurors who indicated that they would automatically vote against the death penalty deprived him of a fair and impartial jury on the issue of guilt. In Hovey v. Superior Court (1980) 28 Cal.3d 1, 68, 168 Cal.Rptr. 128, 616 P.2d 1301, we held that there was, as yet, insufficient evidence to demonstrate that a California death-qualified jury resulted in a nonneutral jury. No new evidence to support this contention has been presented. For reasons described in Hovey, the claim lacks merit.
B. Validity of Search Warrant
Defendant asserts the invalidity of the warrant authorizing a search of his residences and automobiles. He argues that two pieces of evidence seized pursuant to that search, the wire cutters and a receipt for the telegram from Bill Martin, should have been suppressed. The wire cutters, seized from defendant's automobile, were identified by an expert at trial as the tool used to cut the baling wire found on the victims' bodies. The receipt for the telegram was discovered in defendant's home and introduced at the penalty phase.
His challenge to the search warrant was on the following grounds: (1) it was issued by a Stanislaus County judge authorizing a search in Fresno County; (2) the warrant authorized a search for the same items in four separate locations; (3) the affidavit supporting the warrant omitted material information that cast doubt on the reliability of two informants; and (4) the police seized objects outside the scope of the warrant.
Defendant acknowledges that these attacks on the search warrant were not raised in the trial court. We have recently held that "[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground [187 Cal.Rptr. 753] sought to be urged on appeal. [Citations.]" (People v. Rogers (1978) 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048; see Evid.Code, § 353.)
While acknowledging the foregoing principle, defendant urges us to reach the merits of his suppression claim on the ground that his trial counsel's failure to raise the issue in the trial court constituted a denial of the effective assistance of counsel. In order to establish such inadequacy, he must demonstrate that counsel's failure to object to the introduction of the evidence below constituted a failure to provide "reasonably competent representation." (People v. Pope (1979) 23 Cal.3d 412, 424-425, 152 Cal.Rptr. 732, 590 P.2d 859.) Defendant has failed to meet this burden as to any of his challenges to the search warrant. Our review is limited to consideration of the facts established by the appellate record.
We recently held that a magistrate has jurisdiction to issue a warrant for an out-of-county search "when he has probable cause to believe that the evidence sought relates to a crime committed within his county and thus pertains to a present or future prosecution in that county." (People v. Fleming (1981) 29 Cal.3d 698, 707, 175 Cal.Rptr. 604, 631 P.2d 38, fn. omitted.) In this case, the search warrant sought evidence relating to two homicides committed in Stanislaus County. The magistrate had probable cause to believe that evidence relevant to those crimes might be found in defendant's residences and automobiles. He therefore had jurisdiction to issue a warrant for an out-of-county search for that evidence.
Defendant's second argument, that the warrant was invalid because it authorized a search for the same property in four separate locations, is similarly without merit. The warrant authorized a search of two residences, the Ross house where defendant had lived part-time before the weekend of the homicides, and the apartment which he and Lorrie Ross had rented four days after the killings. The warrant also authorized a search of defendant's two automobiles, a Chevrolet which he had owned for some time and a Buick purchased shortly after the homicides.
The only issue raised as to such a warrant is whether the supporting affidavit establishes probable cause to search each of the places listed. A search warrant designating more than one person or place to be searched must contain sufficient probable cause to justify its issuance as to each person or place named therein. (See People v. Nadell (1972) 23 Cal.App.3d 746, 752, 100 Cal.Rptr. 444; see also 17 Cal.Jur.3d, Criminal Law, § 341, pp. 597-598.) The affidavit in question established that defendant had obtained baling wire one day before the killings; that he was in Modesto on the day of the murders; that his fingerprint had been found on a piece of paper which was lying next to one of the victims; and that he had purchased a car and rented an apartment, paying large sums of money in cash, within four days after the homicides. On the basis of this information, the magistrate properly concluded that there was probable cause to believe that evidence of the crime could be found at either of defendant's residences or in either of his cars.
In this connection, defendant's argument apparently rests on the erroneous theory that a warrant which authorizes the search of more than one location for the same property is per se invalid. He urges that the authorization to search four different places demonstrates that the affiant did not know where the sought-after property actually was located. However, "certainty is not required" to justify issuance of a search warrant. (People v. Watson (1979) 89 Cal.App.3d 376, 385, 152 Cal.Rptr. 471.) There is no logical inconsistency in the conclusion that an affidavit establishes probable cause to believe that evidence of a crime will be in any one of a suspect's homes or vehicles.
Defendant next asserts that the affidavit supporting the search warrant intentionally omitted material information. In challenging a search warrant based on an affidavit containing omissions, a defendant bears the burden of showing both that there were omissions and that they were [187 Cal.Rptr. 754] material. (People v. Kurland (1980) 28 Cal.3d 376, 390, 168 Cal.Rptr. 667, 618 P.2d 213.) A fact is material if its "omission would make the affidavit substantially misleading. " (Id., at p. 385, 168 Cal.Rptr. 667, 618 P.2d 213, italics in original.) That is, [654 P.2d 1281] the omission is material if "there is a substantial possibility [that its inclusion] would have altered a reasonable magistrate's probable cause determination." (Ibid.) If an omission is immaterial, the warrant will not be quashed unless the defendant can show that information was intentionally omitted in order to mislead the magistrate or in reckless disregard of the accuracy of the warrant. (Id., at pp. 387, 390, 168 Cal.Rptr. 667, 618 P.2d 213.)
Defendant claims that two pieces of material information were omitted. First, the affidavit relied on information supplied by Lorrie Ross, to the effect that she went with defendant to obtain baling wire shortly before the date of the murders, and that he returned the night of the killings, told her that he and an accomplice had committed a robbery and tied people up with baling wire, and showed her $4,000 which he said was his share of the money from the robbery. The affidavit failed to note that two weeks before the homicides Lorrie Ross asked a relative where she and defendant could obtain baling wire.
Defendant now argues that this omitted information was material because it indicated that Ross was an accomplice in defendant's alleged crime, and therefore cast doubt on the reliability of the information which she supplied to the police. However, the omitted fact was merely cumulative. The affidavit contained information which implicated Ross in the trip to obtain baling wire. Thus, the magistrate knew that she was a possible accomplice. There is no "substantial possibility" that inclusion of the fact that Ross had inquired about baling wire could have altered the probable cause determination. (People v. Kurland, supra, 28 Cal.3d at p. 385, 168 Cal.Rptr. 667, 618 P.2d 213.)
The second omitted fact was similarly immaterial. The affidavit quoted a business partner of Reiner's, who said that Reiner had told him that he was afraid of an unnamed cousin of Smith and Davis. The business partner also said that an IMMCO employee, Craig Brown, had told him that Smith and Davis had a cousin who had been in prison for murder. The affidavit stated that the affiant contacted Brown and asked him for the cousin's name. Brown said the cousin was Easley. The affidavit omitted the information that Brown was involved in collecting the payment Smith and Davis received when they stole scrap metal from Reiner's business.
Defendant claims that this omitted information cast doubt on Brown's credibility. However, the information supplied by Brown was not material to the affidavit. Brown's information did little more than explain how the police obtained defendant's name. The additional information in the affidavit--including the discovery of defendant's fingerprint at the scene of the crime--adequately established probable cause to search his homes and automobiles. Inclusion of the omitted information about Brown could not have altered the probable cause determination.
Defendant has thus failed to demonstrate that material information was omitted from the affidavit. In addition, he has pointed to no evidence to support his claim that the information was omitted with the intent to mislead the magistrate or in reckless disregard of the accuracy of the warrant. (People v. Kurland, supra, 28 Cal.3d at pp. 387-388, 390, 168 Cal.Rptr. 667, 618 P.2d 213.) On this record, which is admittedly incomplete because of the failure to litigate this claim in the trial court, it must be concluded that the omissions from the affidavit did not require the quashing of the search warrant.
Finally, defendant argues that the seizure of the wire clippers was improper because the clippers were not listed in the search warrant. However, items not named in a warrant may be seized if the police officer is " 'presently aware of some specific and articulable fact from which a [187 Cal.Rptr. 755] rational link between the item seized and [654 P.2d 1282] criminal behavior can be inferred.' " (People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 73-74, 157 Cal.Rptr. 716, 598 P.2d 877, quoting People v. Hill (1974) 12 Cal.3d 731, 763, 117 Cal.Rptr. 393, 528 P.2d 1.) The police officer in this case was authorized to search for baling wire. Defendant has pointed to no evidence to rebut the obvious inference that the officer knew that the wire clippers might have been used to cut the baling wire. He has not met his burden of showing that the failure to challenge the search warrant on this or any other ground amounted to ineffective assistance of counsel.
C. Hearsay Testimony of Davis
Defendant objects to the admission into evidence of Davis' testimony as to numerous statements made to him by Westmoreland that implicated defendant. Davis testified that when he and Smith first approached Westmoreland, Westmoreland told them, "I'll get Elbert to do it [the killing]." Later, when Davis told Westmoreland that Penka wanted to postpone the killing, Westmoreland replied that it was too late because "Elbert is already here." After the homicides, Westmoreland told Davis, "Elbert is at the Snow White Drive-In eating a hamburger and he wants his money," and also said, "Elbert took care of her [Sigrid Junghans] too." He argues that two of the statements were inadmissible hearsay, outside the scope of the coconspirator's exception to the hearsay rule (Evid.Code, § 1223) because they were made after the killings and thus after the termination of the conspiracy. He also contends that the introduction of the statements violated his constitutional right to confrontation, under the holding of Dutton v. Evans (1970) 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213.
The Attorney General correctly notes that there was no objection to the introduction of the hearsay statements at trial. Issues relating to the admissibility of evidence will not be considered on appeal absent a timely objection in the trial court. (People v. Rogers, supra, 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048.) In addition, defendant's claims are without merit.
First, defendant errs in assuming that the conspiracy ended with the deaths of Reiner and his wife. Where payment of money is a crucial objective of a conspiracy, and a coconspirator's statement is made shortly after the substantive crime is committed but before the money is paid, the coconspirator's statements may be admissible under the coconspirator exception to the hearsay rule. (People v. Saling (1972) 7 Cal.3d 844, 852, 103 Cal.Rptr. 698, 500 P.2d 610; People v. Leach (1975) 15 Cal.3d 419, 428-432, 124 Cal.Rptr. 752, 541 P.2d 296.) Independent evidence of the continuing nature of the conspiracy is necessary. (Id., at p. 432, 124 Cal.Rptr. 752, 541 P.2d 296.) Here, there was ample independent evidence that the conspiracy continued until defendant received his share of the payment for the homicides. Westmoreland's statements to Davis after the killings but before defendant was paid clearly were made in furtherance of the conspiracy and therefore fall within the coconspirator's exception.
Defendant's second claim equally lacks merit. Although the admission of some hearsay may violate the confrontation clause of the United States Constitution (Bruton v. United States (1968) 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476), the right to confrontation does not bar the use of all hearsay (Dutton v. Evans, supra, 400 U.S. at p. 80, 91 S.Ct. at p. 215). The United States Supreme Court has expressly declared that the rule of Bruton and Dutton "is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for 'full and effective' cross-examination." (Nelson v. O'Neil (1971) 402 U.S. 622, 627, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222, italics in original; see also People v. Steger (1976) 16 Cal.3d 539, 551, 128 Cal.Rptr. 161, 546 P.2d 665; In re Rosoto (1974) 10 Cal.3d 939, 951-952, 112 Cal.Rptr. 641, 519 P.2d 1065; People v. Brown (1978) 79 Cal.App.3d 649, 656-657, 145 Cal.Rptr. 130.) Here, Westmoreland testified at trial and was cross-examined [187 Cal.Rptr. 756] at length about his statements. Defendant's right of confrontation was not violated.
D. Accomplice Instructions
The trial court instructed the jury that Davis, Smith and Westmoreland were accomplices as a matter of law. (§ 1111.) The question of whether Kenneth Davis was also an accomplice was submitted to the jury. Defendant contends that it was error to submit this issue to the jury, arguing that the jury should have been instructed that Kenneth was an accomplice as a matter of law. (Defendant also argues that it was error not to require the jury to complete a separate verdict sheet recording their decision on whether Kenneth was an accomplice. No authority is cited for this proposition, and no such requirement is established by People v. Tewksbury (1976) 15 Cal.3d 953, 127 Cal.Rptr. 135, 544 P.2d 1335.)
Both Kenneth and Donald Davis testified that Donald came to Kenneth's house on the morning of October 14 and offered to purchase a shotgun that Kenneth had for sale. Kenneth testified that his brother told him he planned to sell the gun "to a couple of guys from Texas." While at Kenneth's house, Donald "sawed off" the shotgun. Kenneth testified that he learned two weeks later that the gun had been used in a murder.
We have held that an accomplice is "one who is liable to prosecution for the identical offense charged against the defendant ...." (§ 1111.) Further, "Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom." (People v. Tewksbury, supra, 15 Cal.3d at p. 960, 127 Cal.Rptr. 135, 544 P.2d 1335.)
In this case, the question of whether Kenneth Davis was an accomplice was properly submitted to the jury. If the jury believed Kenneth's testimony, it reasonably could have found that he did not know that the shotgun would be used in the commission of murder and, therefore, was not an accomplice in the murders. This question of fact was for the jury to resolve.
III. PENALTY PHASE ERRORS
Defendant raises numerous claims of error in the penalty phase of his trial.
A. Witherspoon Error
Defendant contends that the exclusion for cause of prospective juror Joann Madler was error because she did not make it "unmistakably clear" that she would "automatically vote against imposition of capital punishment without regard to any evidence that might be developed at the trial of the case ...." (Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21, 88 S.Ct. 1770, 1776, fn. 21, 20 L.Ed.2d 776, italics in original.) He contends that the verdict of death must therefore be reversed.
Madler was questioned as follows about her views on the death penalty:
"BY [THE PROSECUTOR]: Q. Are you opposed to the death penalty?
"Q. Okay. Somehow I have that feeling. Do you think that it would--being opposed to the death penalty as an abstract concept and being unable to do your job as a trial juror might not be necessarily the same thing and
"A. I understand that. Because very easily you could get in the position of where the law says you have no choice, like if you found there were special circumstances, if they're there, and this calls for the death penalty, you're
"Q. No, there's
"A. You're stuck with it, aren't you? "Q. Well, that's a little bit wrong.
"Q. But not far. If you get to the penalty phase, you will have two choices. You'll always have two choices. The two choices are that you can either decide life imprisonment without possibility of parole, or the death penalty. And the law doesn't tell you which way to go, totally leaves it up to you.
[187 Cal.Rptr. 757]"A. Oh. this is
"Q. Your own decision.
"A. Does that have to be a unanimous decision? All the jurors have to agree that it should be life in prison? What if half think one way and half think the other way, do you have to stay there until you agree to one?
"Q. Well, the question I have to you, without answering that one
"A. Oh. Sorry.
"Q. --is, do you think that you as a trial juror could vote to kill somebody, should you be convinced
"Q. Okay. Under no circumstances, under no factual situation that you can conceive of could you as a person, quite apart from
"A. I couldn't say that I thought somebody else should die. I don't think that's
"Q. You couldn't do that.
"A. Right. No. I could say the life in prison.
"Q. Okay. But you couldn't say the other?
"A. No. Maybe I could say it, but I sure wouldn't want to, and I sure wouldn't want to live with myself thinking that I had done something like that.
"Q. Okay. Well, the specific question I have for you, though, is, would you say that you could not vote to kill somebody?
"A. I wouldn't. I--you know, all things are possible and you could do something that you don't want to do, but I would say that under normal conditions, I would never vote for it.
"Q. Well, you
"A. You know
"Q. You say "under normal conditions."
"A. You know, I don't know what would happen if I did reach that stage of the trial, how I would feel. I don't--I'm against the death penalty, and I can't imagine anything that would make me feel differently. However, it's always possible that something would. But I don't think so, you know.
"Q. Yeah, I think--I hear what you're saying.
"A. I don't explain things very well.
"Q. You do. I know exactly what you're saying. As you sit there right now, being as honest as you have been and possibly can be, can you conceive of a possibility of voting for the death penalty, or as you sit there right now, you can conceive of no possibility of voting for the death penalty?
"A. I would say no.
"Q. One more time. Would you say you can conceive of no situation in which you would vote for the death penalty?
"A. Yeah, I can't think of any situation that I would.
"Q. Okay. I don't want to put words in your mouth.
"Q. Is that how you feel?
"A. Yeah. I--I just--I don't know how I would live with myself thinking I had said somebody should die.
"[THE PROSECUTOR]: Okay. I have no further questions.
"[CODEFENDANT'S COUNSEL]: I have no questions.
"[DEFENDANT'S COUNSEL]: I have no questions.
"[THE PROSECUTOR]: I would ask that this juror be excused for cause, Your Honor.
"THE COURT: Well, I'd prefer you ask another question, rather than a double question, which was, I think the one she really had in mind. You asked two questions in one.
"[THE PROSECUTOR]: Okay.
"THE COURT: And when you say, "can you conceive of no situation," or then you say "Or can you conceive of a situation," and the answer is "No," I don't know what that means.
"[THE PROSECUTOR]: Compound question. Okay.
"Q. Could you conceive of a situation in which you would vote for the death penalty?
[187 Cal.Rptr. 758]"A. No.
"[THE PROSECUTOR]: All right. No further questions.
"THE COURT: You are excused. Thank you.
"MRS. MADLER: Thank you."
As defendant correctly observes, Madler's initial voir dire responses were somewhat equivocal (e.g., "all things are possible") and may have failed to satisfy the Witherspoon requirement that the prospective juror would automatically vote against the death penalty without regard to the evidence in the case. (See, e.g., People v. Lanphear (1980) 26 Cal.3d 814, 841, 163 Cal.Rptr. 601, 608 P.2d 689, judgment vacated and cause remanded, 449 U.S. 810, 101 S.Ct. 57, 66 L.Ed.2d 13, reiterated, 28 Cal.3d 463, 171 Cal.Rptr. 505, 622 P.2d 950; People v. Velasquez (1980) 26 Cal.3d 425, 440, 162 Cal.Rptr. 306, 606 P.2d 341, judgment vacated and cause remanded, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1132, reiterated, 26 Cal.3d 461, 171 Cal.Rptr. 507, 622 P.2d 952.) Yet Madler's subsequent responses clarified her position and disclosed that she could not conceive of a situation in which she could vote for death. Such a response satisfies the Witherspoon requirement. (People v. McGautha (1969) 70 Cal.2d 770, 776-777, 76 Cal.Rptr. 434, 452 P.2d 650, affd. 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711.) In such a case, we may deem the prospective juror's subsequent, unambiguous response as controlling. (See People v. Robles (1969) 71 Cal.2d 924, 931-932, 80 Cal.Rptr. 123, 458 P.2d 67.) Moreover, where conflicting or ambiguous responses are given, the trial court is in the best position to determine whether the prospective juror is qualified to sit. (People v. Floyd (1970) 1 Cal.3d 694, 725, 83 Cal.Rptr. 608, 464 P.2d 64; People v. Linden (1959) 52 Cal.2d 1, 22, 338 P.2d 397; see People v. Velasquez, supra, 26 Cal.3d at pp. 441-442, 162 Cal.Rptr. 306, 606 P.2d 341.) We conclude that venireperson Madler made it unmistakably clear that she could not vote for the death penalty regardless of the evidence in this case, and that she was properly excused on that basis.
We have examined the voir dire of other prospective jurors excused for cause in this case, and we conclude that none of them was excluded contrary to Witherspoon principles.
B. Reasonable Doubt Instructions
At the penalty phase, the prosecutor introduced evidence that defendant had committed a prior act of arson for hire. Such evidence was properly admitted as an aggravating factor for the jury's consideration of the appropriate penalty. (See former § 190.3, subd. (b).)
Defendant contends that the court's penalty phase instructions were inadequate to inform the jury that it should disregard evidence of defendant's commission of arson unless it found him guilty of that offense beyond a reasonable doubt. (See People v. McClellan (1969) 71 Cal.2d 793, 804, 80 Cal.Rptr. 31, 457 P.2d 871.) Such instructions must be given sua sponte by the trial court. (People v. Stanworth (1969) 71 Cal.2d 820, 841, 80 Cal.Rptr. 49, 457 P.2d 889; People v. McClellan, 71 Cal.2d at p. 806, 80 Cal.Rptr. 31, 457 P.2d 871.)
The trial court instructed the jury (in the language of former § 190.3) that it should "consider, take into account and be guided by" various aggravating and mitigating factors, including "the 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 ...." Referring specifically to the evidence of defendant's arson, the trial court then defined the crime of arson and gave related instructions, including the following pertinent admonitions:
"You are instructed that the identity of the defendant as the person who committed the crime is an element of every crime; therefore, the burden is on the State to prove beyond a reasonable doubt not only that the crime alleged was committed, but also that the defendant was the one who committed it. You must be satisfied beyond a reasonable doubt of the accuracy of [187 Cal.Rptr. 759] the witness's identification of the defendant. In this regard, you are instructed that it is not necessary for the defendant to prove that another person may have committed the crime, nor is it the burden of the defendant to prove his innocence.
"If facts and circumstances have been introduced into evidence which raise a reasonable doubt as to whether the defendant--as to whether the defendant was the person who committed the crime, then you should find the defendant not guilty of the offense.
"A defendant in a criminal matter is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt." (Italics added.)
To avoid any possible uncertainty in this matter, the court repeated that the foregoing instructions related to the "alleged criminal activity" of defendant. The court concluded its penalty phase instructions by advising the jury that its penalty determination should be based upon a weighing of the aggravating and mitigating factors, and that "in order to make a determination as to the penalty, all 12 jurors must agree."
Reasonably construed, the foregoing instructions clearly were sufficient to explain that, unless defendant's arson was proven beyond a reasonable doubt, that offense could not be deemed an aggravating factor in determining penalty. As the court carefully instructed, the jury's sole task at the penalty phase was to consider and weigh the various aggravating and mitigating factors; defendant's arson would constitute an aggravating circumstance only if the jury found him guilty of that offense beyond a reasonable doubt.
The following extracts from the trial transcript clearly demonstrate that both defense counsel and the prosecutor also emphasized this very point in their closing arguments. First, defense counsel explained that "Before you can consider the arson as evidence of aggravation in his [defendant's] background, you have to decide initially during your deliberations that he is guilty beyond a reasonable doubt of that arson. If you find that he is not guilty, or has not been proven guilty beyond a reasonable doubt of that arson, you may not consider that during the course of your deliberations as a factor in aggravation." (Italics added.)
Thereafter, the prosecutor urged that the aggravating factors in this case, including the arson, outweighed the mitigating ones, and explained that "In talking about the arson, Mr. Grisez [defense counsel] correctly points out that I have really two burdens in this phase of the trial.... [I]n proving the arson, for you to consider that, I must prove it beyond a reasonable doubt...." (Italics added.)
It is argued, however, that the foregoing instructions, amplified and reaffirmed by counsels' closing arguments, were insufficient under prior decisions of this court. Yet the cases cited in support of this contention are inapposite, for unlike the present case, in none of them were any "reasonable doubt" instructions given with respect to the defendant's commission of other crimes. (See, e.g., People v. Stanworth, supra, 71 Cal.2d 820, 840-841, 80 Cal.Rptr. 49, 457 P.2d 889; People v. McClellan, supra, 71 Cal.2d 793, 803-806, 80 Cal.Rptr. 31, 457 P.2d 871.)
Nor does People v. Vann (1974) 12 Cal.3d 220, 225-228, 115 Cal.Rptr. 352, 524 P.2d 824, assist defendant, for in that case the defendant was deprived of the basic, essential "reasonable doubt" instruction setting forth the People's burden of proof in criminal cases. As Vann observed (quoting from an earlier case), " 'No instruction could be more vital ....' " (P. 227, 115 Cal.Rptr. 352, 524 P.2d 824.) In the present case, in contrast, not only was this basic instruction given, but also a similar instruction was read to the jury regarding the standard of proof of defendant's prior offenses. We conclude that the instructions which were given were entirely sufficient to inform the [187 Cal.Rptr. 760] jury of the reasonable doubt standard as applied to defendant's prior criminal activity.
C. Unanimous Verdict
Defendant asserts an additional instructional error: the failure to instruct the jurors that their conclusion as to defendant's guilt of arson must be unanimous. In the present case, the jury was instructed that "In order to make a determination as to the penalty, all 12 jurors must agree." No further instructions as to juror unanimity were requested by defendant, and we find no authority for the proposition that a more specific instruction must be given sua sponte.
Moreover, defendant cites no cases or statutory provisions which suggest that the penalty phase jurors are forbidden to consider evidence of the defendant's prior crimes unless they unanimously find the defendant guilty of those crimes. Indeed, the applicable statutory provisions (former § 190.3, subd. (b)) required no findings or verdict whatever with respect to the existence or nonexistence of the various aggravating and mitigating circumstances considered by the jury at the penalty phase. If a particular juror determines that the defendant is guilty of a prior offense beyond a reasonable doubt, the juror properly may take that fact into consideration (along with all the other evidence regarding the defendant's character) in casting a vote as to penalty. (Cf. People v. Milan (1980) 9 Cal.3d 185, 195, 107 Cal.Rptr. 68, 507 P.2d 956, affirming a conviction of first degree murder despite lack of juror unanimity as to whether the offense was a premeditated act or merely felony murder.) We cannot expect, and should not require, juror unanimity regarding such collateral matters as defendant's prior offenses, especially where proof of such matters is not a prerequisite to conviction or penalty.
D. Written Verdict
Defendant advances the additional and related argument that the jury should have been required to complete a written verdict form indicating whether it found defendant guilty of the alleged criminal activity beyond a reasonable doubt. Because we have decided, in the preceding section of this opinion, that each juror may form his own conclusion as to defendant's guilt of other criminal activity, it follows that no written verdict on this subject is required. In addition, we have held that the failure to require that the jury file a written finding as to which aggravating circumstances it relied on does not render the California death penalty statutes unconstitutional. (People v. Jackson (1980) 28 Cal.3d 264, 316-317, 168 Cal.Rptr. 603, 618 P.2d 149.) A similar analysis is applicable here.
E. Due Process Claim
Defendant next argues that he was denied due process by the jury's consideration of evidence of his commission of arson as a possible aggravating factor in determining the penalty for his murders. (He raised this argument for the first time on appeal, in response to our request for briefing on the issue.)
Section 190.3, permitting consideration of a defendant's criminal activity which involves violence, also states that: "As used in this section, criminal activity does not require a conviction." (See People v. Harris (1981) 28 Cal.3d 935, 962-963, 171 Cal.Rptr. 679, 623 P.2d 240, sustaining the operation of those provisions.) The section also requires that a defendant be given prior notice of evidence to be introduced in aggravation of the penalty. Defendant here received such notice, but he now argues that it was improper, and a denial of due process, to allow the same jury which found him guilty of two murders to be presented with additional evidence of criminal acts for purposes of determining the penalty.
Defendant bases his contention on State v. McCormick (Ind.1979) 397 N.E.2d 276, wherein a divided court held that the defendant was denied due process because the jury that found him guilty of murder and sentenced him to death had been permitted to consider another unrelated murder with [187 Cal.Rptr. 761] which he had been charged but not convicted. The court reasoned that his right at the penalty phase to have the other murder proved beyond a reasonable doubt had been compromised by the jury's prejudicial knowledge of the murder of which they had convicted him in the guilt phase.
In People v. Haskett (1982) 30 Cal.3d 841, 867, 180 Cal.Rptr. 640, 640 P.2d 776, a similar contention was raised but not resolved because the judgment was reversed on other grounds as to penalty, and the retrial would occur before a jury that had not served in the guilt phase. In explaining the contention, Haskett refers not only to McCormick but also to cases in which jurors were held disqualified for having participated in, or been present at, defendant's prior conviction of a similar offense. (Leonard v. United States (1964) 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028; Donovan v. Davis (4th Cir.1977) 558 F.2d 201; Government of Virgin Islands v. Parrott (3d Cir.1977) 551 F.2d 553, 554.) Here, the offenses at issue (two murders on the one hand and arson on the other) are quite dissimilar in character, although defendant may have committed each offense "for hire." Given their dissimilarity, and the gravity of the present offenses, it is highly unlikely that the jury's verdict of death was induced by the fact that defendant earlier had committed an arson not involving the loss of human life.
Haskett indicates that defendant's objection would be untenable if the unadjudicated criminal activity were considered by a separate jury empaneled for the penalty phase. But that jury would be told, of course, and required to consider "[t]he circumstances of the crime of which the defendant was convicted in the present proceeding" (former § 190.3, subd. (a)). Disclosing those circumstances would necessitate significant duplication of evidence already presented to the other jury at the guilt phase. Moreover, empanelment of the separate penalty jury would contravene the strong legislative preference for having a single jury hear both guilt and penalty phases. (See former § 190.4, subd. (c) [single jury required unless good cause shown]; People v. Thornton (1974) 11 Cal.3d 738, 753, 114 Cal.Rptr. 467, 523 P.2d 267.) We conclude that the foregoing considerations outweigh any supposed disadvantage to defendant in having his guilt of the arson determined by the same jury that had convicted him of the murders, rather than by a jury that heard evidence of the circumstances of the murders (as well as evidence of the arson) for purposes of aggravation.
F. Hearsay Testimony of Sergeant Homstad
At the penalty trial, the prosecution introduced the testimony of Sergeant Homstad of the sheriff's department of Nye County, Nevada. Homstad testified that in September 1977 his supervisor, Lieutenant Henderson, told him that there might be trouble at the Chicken Ranch brothel. Henderson said that Homstad should head in the opposite direction if trouble did arise. Bill Martin was in the room at the time. The arson at the Chicken Ranch occurred nine months later, in June 1978.
Defendant objected to the introduction of this statement. The trial court overruled the objection, holding that the statement was admissible under the coconspirator's exception to the hearsay rule. (See Evid.Code, § 1223.)
Evidence Code section 1223 permits the introduction of a hearsay statement if it (a) was made by the declarant while participating in a conspiracy, (b) was in furtherance of that conspiracy, (c) was made before or during the time the defendant was participating in the conspiracy, and (d) independent evidence establishes each of the above three facts. (People v. Leach, supra, 15 Cal.3d at pp. 431-432, fn. 10, 124 Cal.Rptr. 752, 541 P.2d 296.) Each of the first three facts must be established without reference to the contents of the hearsay statement. (Ibid.; People v. Perez (1978) 83 Cal.App.3d 718, 728-729, 148 Cal.Rptr. 90; People v. Lipinski (1976) 65 Cal.App.3d 566, 575, 135 Cal.Rptr. 451.) This foundational requirement is met if prima facie evidence of the preliminary facts is presented. (People [187 Cal.Rptr. 762] v. Jourdain (1980) 111 Cal.App.3d 396, 405, 168 Cal.Rptr. 702; People v. Earnest (1975) 53 Cal.App.3d 734, 741, 126 Cal.Rptr. 107.)
Defendant argues that the prosecution presented no independent evidence to establish that he ever participated in a conspiracy with Henderson, the declarant. Although there was evidence linking defendant to a conspiracy to force Plankington, the owner of the Chicken Ranch, to close his business, defendant maintains that there was no independent evidence linking Henderson, the declarant, to this conspiracy, and that the requirement of Evidence Code section 1223, subdivision (a)--that the statement be made while the declarant was participating in a conspiracy and in furtherance of that conspiracy--was not met.
We disagree for two basic reasons: first, Henderson's statement was not hearsay at all; second, it was admissible under section 1223 because there was some evidence that Henderson was part of a high-level conspiracy to put the Chicken Ranch out of business.
Plankington, the owner of the Chicken Ranch, testified that in 1976, after the local district attorney had demanded a share of the brothel's profits and he had refused, the district attorney said: "... the only place you'll run [a brothel] is from inside of my jail." Indeed, one day after the Chicken Ranch opened, Plankington was arrested and litigation had been pending ever since. Further, he and his customers were systematically harassed by sheriff's deputies with respect to such matters as drivers' licenses and registrations. His testimony thus inculpated the district attorney personally and various unnamed persons in his office and in the sheriff's office as being involved in a conspiracy to put the brothel out of business.
Against this factual matrix, Henderson, in effect, ordered his deputies to look the other way if there was trouble at the Chicken Ranch. That statement by Henderson is obviously not hearsay--it is an order to subordinates. The only "truth" for which it was admitted was that it correctly portrayed Henderson's frame of mind. To the extent that this may have made it hearsay, it was admissible under section 1250 of the Evidence Code. Thus, Henderson was legitimately shown to be a member of the conspiracy against the Chicken Ranch.
Martin, the owner of the competing Shamrock brothel, was present when Henderson made his statements. Martin's later conspiracy with Easley was amply proven. Since the purpose of the later conspiracy was the same as that of the earlier one, it is legitimate to infer that Martin shared Henderson's aims. Indeed, his presence at the meeting is otherwise hard to explain. Furthermore, by his silence, Martin may be deemed to have adopted Henderson's statement that he and Martin were to proceed to the Chicken Ranch where some trouble which would normally provoke police action might take place. (Evid.Code, § 1221.)
In brief, the entire conversation--Henderson's statement and Martin's adoptive admission--was admissible against defendant Easley, who later joined the conspiracy, as a declaration made "prior to ... the time [Easley] was participating in that conspiracy." (Evid.Code, § 1223, subd. (b).)
G. Ineffective Counsel
Defendant contends that his trial counsel's failure to call key witnesses at the penalty phase constituted ineffective assistance of counsel. He objects to the failure to call two witnesses: Bill Martin and a man identified only as "Jack Tatum's brother." Defendant urges this court to "presume" that Martin and Tatum would have presented exonerating evidence.
This argument seriously misapprehends the applicable standard of review of a claim of ineffective assistance of trial counsel. The burden of proving such a claim is on the defendant, who must show both that counsel failed to act in a manner expected of a reasonably competent attorney and that the omission resulted in the withdrawal of a potentially meritorious defense. (People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) [187 Cal.Rptr. 763] Where the record is silent as to why counsel acted in a particular fashion, the case must be affirmed on appeal. (Id., at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859.)
Decisions as to which witnesses to call are peculiarly within the province of defense counsel. (People v. Jackson, supra, 28 Cal.3d 264, 295-296, 168 Cal.Rptr. 603, 618 P.2d 149; People v. Floyd, supra, 1 Cal.3d 694, 709, 83 Cal.Rptr. 608, 464 P.2d 64.) Defendant points to no evidence in the record as to the identity, location, or possible testimony of "Jack Tatum's brother." On a silent record, we must assume that trial counsel made an informed, tactical decision. The record does indicate that trial counsel intended to call Bill Martin as a witness unless Martin decided to invoke his privilege against self-incrimination. Defendant has pointed to no evidence to rebut the obvious inference that counsel decided not to present Martin's testimony for a valid tactical reason.
Defendant raises a second claim of ineffective assistance of counsel, based on the testimony of Jan Arnold, his federal parole officer.
Defense counsel called Arnold as a witness at the penalty trial. She testified that defendant was on parole for passing counterfeit notes and had no record of violent crime. She said he had been a cooperative parolee, satisfied all the conditions of parole, and worked steadily. He was involved in only one violent incident while on parole, a fight with his girlfriend, Lorrie Ross, after which defendant asked Arnold to counsel Ross. Arnold also testified that defendant was shaken and anxiety-ridden after his daughter's death.
On cross-examination, the district attorney used the contents of defendant's federal parole file to impeach Arnold. The file indicated that defendant had in the past supported himself from the earnings of prostitutes and from fighting gaming cocks. The file also revealed a number of arguments and fights while defendant was in federal prison.
Arnold confirmed the contents of the file, but expressed surprise that the prosecutor had access to the information. She said that her supervisors had instructed her not to review the contents of the parole file before testifying and not to discuss information from it.
Defendant first argues that the federal parole file was privileged and therefore inadmissible. Although Arnold indicated some reluctance to talk about the contents of the parole file, defendant did not object to the prosecution's use of the file. Evidentiary questions not raised below cannot be raised on appeal. (People v. Rogers, supra, 21 Cal.3d at p. 548, 146 Cal.Rptr. 732, 579 P.2d 1048; see Evid.Code, § 353.)
Defendant also argues that his attorney's failure to realize that the parole report would be rendered admissible as a result of Arnold's testimony constituted ineffective assistance of counsel. Yet the record fails to rebut the presumption that counsel made an informed, tactical decision to secure Arnold's testimony despite potential impeachment.
H. Prosecutorial Misconduct
Defendant contends that the prosecutor was guilty of misconduct at the penalty phase when he questioned Detective McDonough about his investigation into the death of defendant's daughter. McDonough was called to the witness stand at the penalty trial by the defense counsel, and asked to explain an incident that occurred during the guilt phase of the trial. While McDonough was sitting at the prosecutor's table in the courtroom, defendant grabbed a piece of paper from a pad in front of McDonough and carried it to the judge. He said, "I don't think I should have to sit here and--will you read that to the court." The trial court said, "Just have a seat, Mr. Easley." Defendant turned to McDonough and said, "Maggot. You're a maggot." He then sat down. The court did not read the note to the jury.
[187 Cal.Rptr. 764]McDonough testified that his note said, "Elbert is such a nice guy, gets his daughter killed and then buys her a headstone for $340. R.I.P." McDonough said he wrote the note while Lorrie Ross was testifying, after she said that defendant bought a headstone for his daughter's grave. McDonough denied that he intended that defendant see the note.
On cross-examination, the district attorney asked McDonough, "Did you investigate or research in any way the background or the facts surrounding the death of Elbert Easley's daughter, Marty?" McDonough replied, "Yes, I did." The prosecutor then said he had no further questions.
Defense counsel did not object to this interchange, and asked no additional questions of McDonough.
Defendant now argues that the district attorney's final question to McDonough was improper because it left the jury with the impression that because McDonough had investigated Marty's death, he had information that would support the charge made in his note: that defendant "[got] his daughter killed." Defense counsel, however, brought this entire matter to the jury's attention by calling McDonough as its own witness and having him read the note to the jury; counsel apparently concluded--as a tactical matter--that it would evoke sympathy for defendant if the jury understood how angry he got at the reference to his daughter's death. In response, the prosecutor did not delve into the matter at length, but simply asked McDonough one brief question to counter the possibility that the jury might infer that he had written the note without any knowledge of the situation simply to enrage the defendant. Taken in context, the district attorney's question was not misconduct.
I. Probation Report
Defendant contends that the trial court erred in considering the contents of a probation report containing unsubstantiated allegations of defendant's involvement in numerous uncharged murders and in the rape of his daughter. Further, he alleges that his counsel's failure to demand an evidentiary hearing on the allegations of report and to cause the report to be stricken from the record constituted a denial of effective assistance of trial counsel. Yet the record fails to indicate that the trial court relied upon the probation report or its contents when imposing sentence. Indeed, the record reflects that the court's decision to deny defendant's statutory motion for modification of the jury's verdict (former § 190.4, subd. (e)) was expressly founded upon other considerations.
J. Constitutionality of Death Penalty
Defendant contends that the death penalty is unconstitutional because it constitutes cruel and unusual punishment. We rejected this argument in People v. Jackson, supra, 28 Cal.3d 264, 315-317, 168 Cal.Rptr. 603, 618 P.2d 149. (See also People v. Frierson (1979) 25 Cal.3d 142, 172-188, 158 Cal.Rptr. 281, 599 P.2d 587; Cal. Const., art. I, § 27.)
The judgment is affirmed.
NEWMAN and KAUS, JJ., concur.
MOSK, Justice, concurring.
I concur. In doing so, however, I do not intend to depart from the views expressed in my dissent in People v. McClellan (1969) 71 Cal.2d at 812-819, 80 Cal.Rptr. 31, 457 P.2d 871.
KAUS, Justice, concurring.
I have signed the majority opinion which affirms the judgment of the trial court both as to guilt and penalty. Herewith a brief explanation for my concurrence and a somewhat more elaborate statement of my understanding concerning the effect of today's decision.
The 1977 legislation under which Easley was sentenced to death was upheld by this court in People v. Frierson (1979) 25 Cal.3d 142, 172-188, 158 Cal.Rptr. 281, 599 P.2d 587 and People v. Jackson (1980) 28 Cal.3d 264, [187 Cal.Rptr. 765] 315-317, 168 Cal.Rptr. 603, 618 P.2d 149. Its immunity from attack on grounds unsuccessfully urged in Frierson and Jackson was thus established law when I became a member of this court about seven months after Jackson became final. To me the issue, therefore, is not whether the questions raised in Frierson and Jackson were "correctly" decided, but that they were decided. While I am not a blind slave to stare decisis, it would be intolerable if fundamental holdings of this court were considered at large every time there is a vacancy to be filled. I therefore accept the holdings of Frierson and Jackson as the law.
There may be legitimate doubt whether Frierson alone can be interpreted as validating the legislation. A plurality of three justices signed the lead opinion. Justice Mosk concurred, writing that he did so only because it did not "clearly, positively and unmistakably" appear that the legislation was unconstitutional. (25 Cal.3d at p. 196, 158 Cal.Rptr. 281, 599 P.2d 587.) Justice Newman joined this concurrence. In Jackson, however, Justice Mosk dissented, finding that the defendant had been denied effective assistance of counsel and expressing the view that certain aspects of the legislation were unconstitutional. (28 Cal.3d at pp. 337-338, 168 Cal.Rptr. 603, 618 P.2d 149.) Justice Newman, on the other hand, in a brief concurring opinion, joined the Frierson plurality. (28 Cal.3d at pp. 318-319, 168 Cal.Rptr. 603, 618 P.2d 149.)
1 Wigmore, Evidence, section 194, page 650.
In his concurring opinion in Frierson, Justice Mosk noted that the United States Supreme Court's so-called "Gregg " decisions resulted in "a little light but still further confusion." (25 Cal.3d at p. 191, 158 Cal.Rptr. 281, 599 P.2d 587.) As the divergence of views among lawyers and judges of goodwill proves, in spite of Gregg the correctness of any particular death penalty law is very much a matter of subjective interpretation.
In People v. Hillery (1967) 65 Cal.2d 795, 805, 56 Cal.Rptr. 280, 423 P.2d 208, this court upheld use of the following instruction on this issue: "Evidence has been introduced for the purpose of showing that prior to the conviction of the offense for which you must now determine the penalty, the defendant may have committed other crimes. You are not permitted to consider that evidence unless and until the commission of such other crimes is proved beyond a reasonable doubt ...." (See also People v. Floyd, supra, 1 Cal.3d at p. 716, fn. 9, 83 Cal.Rptr. 608, 464 P.2d 64; People v. Mitchell (1966) 63 Cal.2d 805, 817, 48 Cal.Rptr. 371, 409 P.2d 211.)
Of course, every student of the law has a covert or overt agenda of holdings he would overrule or distinguish out of existence, if only he had the chance and the votes. I am no exception. (See People v. Cole (1982) 31 Cal.3d 568, 583, 183 Cal.Rptr. 350, 645 P.2d 1182 (conc. opn.).) The principle on which I base my concurrence in this case applies only to truly fundamental decisions which shape the body of the law of our state.
Gregg v. Georgia (1976) 428 U.S. 153, 211, 96 S.Ct. 2909, 2942, 49 L.Ed.2d 859; Jurek v. Texas (1976) 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929.
This does not mean that the discussion of every issue raised in Frierson and Jackson actually led to a holding. Specifically, I believe that the court's pronouncements on the subject of proportionality review--hereafter sometimes simply "review"--can reasonably be interpreted to mean simply that nothing in the 1977 statute or its legislative history precludes this court from exercising such review, and to leave open the question of the specific form of review that will be undertaken.
I am not criticizing the court for not deciding the details as to the nature and procedure of proportionality review in Frierson and Jackson, for no such decision was necessary to dispose of those two appeals from trial court judgments imposing the death penalty. No one contends that review is to be had by the trial court--in fact the entire point of the review procedure is to insure consistency of punishment on a statewide basis. Therefore all that mattered to the Frierson and Jackson trial court judgments was that they did not depend on a death penalty statute which precluded review by a statewide body, should it ultimately be held that such review was constitutionally mandated. The question of preclusion was, of course, put to rest when this court decided that neither the lack of an explicit provision for review nor the legislative history of the 1977 legislation prevented review.
The relevant discussion starts 25 Cal.3d at page 180, 158 Cal.Rptr. 281, 599 P.2d 587 of the Frierson opinion. After noting in an aside that in Rockwell v. Superior Court (1976) 18 Cal.3d 420, 432, 134 Cal.Rptr. 650, 556 P.2d 1101 we had doubted that a majority of the Gregg court had deemed proportionality review essential to a valid death penalty law, we held that the lack of an express provision for such review was certainly not fatal. We pointed to the fact that neither the Florida nor the Texas statute had such express provisions, yet each state's death penalty law was held valid, the United States Supreme Court taking note that the highest courts of both states [187 Cal.Rptr. 766] had undertaken the task of reviewing all death sentences "to promote the evenhanded, rational and consistent" imposition of the death penalty.
These specific words were used in relation to the Texas scheme. (Jurek v. Texas (1976) 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929.) Judicial review in Florida, which obviously serves the same purpose, was cited as a reason for upholding the Florida law in Proffitt v. Florida (1976) 428 U.S. 242, 258-259, 96 S.Ct. 2960, 2969-2970, 49 L.Ed.2d 913.
Roberts (Stanislaus) v. Louisiana (1976) 428 U.S. 325, 335-336, fn. 11, 96 S.Ct. 3001, 3007-3008, fn. 11, 49 L.Ed.2d 974; Proffitt v. Florida (1976) 428 U.S. 242, 251, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913.
Further, we saw significance in the fact that the United States Supreme Court had refused to review a number of decisions from states which had no statutory provisions for proportionality review, "but the courts of which have stated that they will perform a similar function." (Id., 25 Cal.3d at p. 182, 158 Cal.Rptr. 281, 599 P.2d 587.) In particular we relied on State v. Simants (1977) 197 Neb. 549, 250 N.W.2d 881 and even quoted part of a "promise" by that court that it would conduct proportionality review. This promise was in no way contingent on further prodding from Washington, D.C.
The Nebraska Supreme Court's statement, in full, read as follows: "Defendant asserts that the Nebraska system is deficient in this regard because there are no statutory guidelines for the Nebraska Supreme Court such as are provided in Georgia. We answer that this court, in every case under the new statute, will perform its function of death sentence review with a maximum of rationality and consistency. While we do not have the Georgia provision for proportional review, every capital case where there can be the slightest question will be considered in comparison with other capital cases. In other words, we will compare each capital case under review with those previous cases in which the death penalty has or has not been imposed under the new statute. By this means review by this court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case." (197 Neb. at pp. 563-564, 250 N.W.2d 881.)
Gardner v. Florida (1977) 430 U.S. 349, 361, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393; Roberts (Stanislaus), supra, 428 U.S. at pages 335-336 and footnote 11, 96 S.Ct. at 3007-3008, fn. 11; Woodson v. North Carolina (1976) 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944.
At least one respectable court has interpreted Frierson as extending a similar promise to persons condemned to death in this state. In Harris v. Pulley, filed September 16, 1982, 692 F.2d 1189, 1196, the United States Court of Appeals for the Ninth Circuit wrote that "the California Supreme Court in People v. Frierson stated that it would review each death penalty ... to determine whether the penalty was being applied proportionately." It then vacated the federal district court's denial of habeas corpus "[b]ecause the California Supreme Court did not undertake the proportionality review it established in People v. Frierson, 25 Cal.3d at 183 [, 158 Cal.Rptr. 281, 599 P.2d 587] and People v. Jackson, 28 Cal.3d 317 [, 168 Cal.Rptr. 603, 618 P.2d 149] ...." (Id., at p. 1204.) I hasten to note that the Harris decision is not final.
Gregg, supra, 428 U.S. at page 195, 96 S.Ct. at p. 2935.
Finally, the Frierson plurality noted our experience with "well established proportionality principles of general application" by pointing to In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 and other cases which review the constitutionality of particular punishments under article I, section 17 of the California Constitution. This particular point was severely criticized by the Chief Justice's dissent in Jackson (28 Cal.3d at pp. 358-363, 168 Cal.Rptr. 603, 618 P.2d 149), where it was argued, inter alia, that review of compliance with the prohibition against cruel and/or unusual punishments under the Lynch criteria was not the kind of proportionality review which, in the dissent's view, was constitutionally required. In answer, the Jackson court (28 Cal.3d at p. 317, 168 Cal.Rptr. 603, 618 P.2d 149) pointed, inter alia, to Frierson 's reiteration of the second prong of the Lynch test, which requires a court to determine "whether more serious crimes are punished in this state less severely than the offense in question." (25 Cal.3d at p. 183, 158 Cal.Rptr. 281, 599 P.2d 587.) "In any event," added the Jackson court, "we stand fully prepared to afford whatever kind of proportionality [187 Cal.Rptr. 767] review may be held constitutionally mandated by the high court." (28 Cal.3d at p. 317, 168 Cal.Rptr. 603, 618 P.2d 149.)
The centerpiece of Lynch type review is comparison of the punishment with the crime for which it is imposed. On the other hand, the proportionality review which may be mandated by Gregg is designed to determine whether the sentence is disparate compared to the punishment meted out to others who have committed a substantially identical offense.
Gregg, supra, 428 U.S. at page 203, 96 S.Ct. at p. 2939.
With all respect, if--I said if--the Lynch approach is inadequate, this "you call us, we won't call you" language can hardly be described as a holding on the two basic issues yet to be decided: is proportionality review constitutionally mandated and, if so, just what type of review is involved.
For these reasons I consider the issues of the necessity and the nature of proportionality review as unsettled by this court's prior decisions. I express no personal view on these questions, but obviously before any judgment of death is actually carried out, we will have to decide whether such review is constitutionally mandated and, if so, just what it entails. If the decision is that review is required, it will have to be afforded to each person condemned to death, including Easley.
The issue is presently before us in In re Jackson, Crim. 22165.
See concurring opinion, ante, at page 767 of 187 Cal.Rptr., at pp. 1294-1295 of 654 P.2d.
The next problem--and it is a major one--would be the ability of this court, as presently staffed and equipped, to conduct meaningful review.
See, e.g., People v. Wingo (1975) 14 Cal.3d 169, 121 Cal.Rptr. 97, 534 P.2d 1001; People v. Vargas (1975) 53 Cal.App.3d 516, 126 Cal.Rptr. 88; People v. Ruiz (1975) 49 Cal.App.3d 739, 122 Cal.Rptr. 841; People v. Malloy (1974) 41 Cal.App.3d 944, 116 Cal.Rptr. 592.
None of these questions, however, has anything to do with the legal questions raised by an appeal from a judgment imposing the death penalty. Such an appeal examines the trial record for reversible error. Proportionality review, on the other hand, would solely be a function of this court. Therefore, I join in affirming the judgment, but only on my understanding that the affirmance does not preclude defendant from seeking proportionality review in this court.
BIRD, Chief Justice, concurring and dissenting.
I concur in the affirmance of the verdict of guilt. However, numerous errors at the penalty phase of appellant's trial require reversal of the penalty judgment. In addition, I cannot agree with the concurring justice's conclusion that the issue of proportionality review may be resolved some time in the future. With all due respect, the proper time to resolve all issues raised by this appeal is now.
At the penalty phase of appellant's trial, the prosecution focused almost exclusively on an attempt to prove that appellant had committed a prior violent crime, the arson of the Chicken Ranch Brothel.
Former Penal Code section 190.3 listed the factors to be considered by the jury in determining whether to impose the death penalty. (Stats.1977, ch. 316, § 11, p. 1259, repealed by § 7 of Initiative Measure approved Nov. 7, 1978.) Subdivision (b) of that section instructed the jury to consider, "The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence ...." Evidence of the arson attack on the Chicken Ranch Brothel was introduced to show that appellant had committed prior "criminal activity" involving "the use of force or violence."
Since appellant had not been convicted of the arson, the penalty phase jury was required to determine whether his actions regarding the arson constituted "criminal activity." This, as the majority concede, required that the jurors decide whether appellant's guilt of the arson had been proved beyond a reasonable doubt.
Appellant alleges numerous errors in the manner in which evidence of the arson was presented to the jury for its consideration. Three of his contentions have merit and require the reversal of the penalty judgment.
Appellant claims that the procedure by which evidence of prior violent crimes is presented to the jury violates due process. The majority's sketchy discussion of this due process claim constitutes an inadequate treatment of a complex constitutional issue.
Asking a jury that has just convicted a defendant of a capital crime simultaneously [187 Cal.Rptr. 768] to determine his guilt beyond a reasonable doubt of another, unrelated crime, and to decide whether to impose the death penalty, raises serious constitutional problems.
Appellant claims that this procedure violated his right to an impartial jury on the arson charge. The jury which had just convicted him of first degree murder with special circumstances could not have been an impartial fact finder when it then considered his guilt of arson. (See People v. Haskett (1982) 30 Cal.3d 841, 867, 180 Cal.Rptr. 640, 640 P.2d 776.) Since the penalty jury is not required to prepare written findings or disclose what aggravating and mitigating factors were found to be true and to have been relied on, it is not possible to determine what influence the arson charge had on the jury's decision. For all we know, the arson could have been the determinative factor or even the only aggravating factor the jury relied on. (See infra, at p. 769 of 187 Cal.Rptr., at pp. 1296-1297 of 654 P.2d.)
Appellant notes that if the arson charge had been tried separately, any juror who had participated in his murder trial would have been disqualified from the arson trial. Here, however, with his very life on the line, appellant's guilt of the arson charge was determined by a jury that had just convicted him of two murders. Clearly, that jury could not consider his guilt of arson impartially.
Similar contentions were considered by the Indiana Supreme Court in State v. McCormick (Ind.1979) 397 N.E.2d 276 and by the Washington Supreme Court in State v. Bartholomew (1982) 98 Wash.2d 173, 654 P.2d 1170. In the Indiana case, the court found unconstitutional a state statute that defined as an aggravating circumstance the fact that "[t]he defendant has committed another murder, at any time, regardless of whether he has been convicted of that other murder." (State v. McCormick, supra, 397 N.E.2d at p. 278.) The Indiana court held that asking the jury, at the penalty phase of the trial, to decide whether the defendant had committed another murder violated due process. "The procedure to be utilized in this case as provided for by statute and case law will be, in fact, two trials. The defendant will first be tried to a jury for the killing of Douglass Overby. If he is convicted, a sentencing hearing will take place. At this sentencing hearing, the defendant will, in essence, be tried for the murder of Harold Lewis. This hearing will be before the same jury which will have just recently convicted the defendant of another, unrelated murder.... Thus, the effect of the statutory procedure in the present case is obvious: defendant McCormick would be fully tried on two separate, unrelated charges before the same jury. He would be tried on the second count to a jury which has been undeniably prejudiced by having convicted him of an unrelated murder. As the trial court pointed out in its ruling: 'Subsection (b)(8) allows the State to secure a conviction on a strong murder case, then seek the death penalty by proving a weak case before a jury which is undeniably prejudiced.' " (Id., at p. 280.)
The McCormick decision was recently relied on by the Supreme Court of Washington, which struck down a statutory provision authorizing the admission of other-crimes evidence "regardless of whether the defendant has been charged or convicted as a result of such activity." (State v. Bartholomew, supra, 654 P.2d at p. 1185. Finding the quoted language to be "inconsistent with the Eighth Amendment standards" (id., at p. 1185), the court held that "[t]o allow the jury which has convicted defendant of aggravated first degree murder to consider evidence of other crimes of which defendant has not been convicted is, in our opinion, unreasonably prejudicial to defendant. A jury which has convicted defendant of a capital crime is unlikely fairly and impartially to weigh evidence of prior alleged offenses. In effect, to allow such evidence is to impose upon a defendant who stands in peril of his life the burden of defending, before the jury that has already convicted him, new charges of criminal activity." (Id., at p. 1184.)
[187 Cal.Rptr. 769]A similar constitutional problem exists under the California statute. Jurors who have determined that the defendant committed murder with special circumstances are understandably predisposed to find the defendant guilty of the penalty-phase crime even if the evidence is weak. Since evidence of a prior crime can be determinative at a penalty trial--"the strongest single factor that causes juries to impose the death penalty." (People v. McClellan (1969) 71 Cal.2d 793, 804, fn. 2, 80 Cal.Rptr. 31, 457 P.2d 871)--use of this process will cause individuals to be sentenced to die whose lives might well be spared if the other-crimes decision were made by an unbiased jury.
The majority's responses to this serious constitutional question leave something to be desired. The majority opinion claims initially that the crime the prosecution attempted to prove at the penalty phase was not "similar" to the murders. (Maj. opn., ante, p. 761 of 187 Cal.Rptr., at pp. 1288-1289 of 654 P.2d.) However, both crimes were similar in several crucial respects: both involved senselessly violent attacks on victims for money, and relatively minor amounts of money at that.
Even if we were to view the arson and murders as dissimilar crimes, the majority's conclusion that prejudice was "unlikely" is not tenable. (See maj. opn., ante, p. 761 of 187 Cal.Rptr., at pp. 1288-1289 of 654 P.2d.) Proof of separate crimes, even if "dissimilar" in some respects, will tend to establish that the accused is generally, a "bad actor" and a "criminal personality." This will cause at least two types of "highly inflammatory and prejudicial effect[s]" on the trier of fact at a penalty trial. (See People v. Thompson (1980) 27 Cal.3d 303, 314, 165 Cal.Rptr. 289, 611 P.2d 883.)
First, a jury which has just convicted an individual of capital murders will have an "over-strong tendency" 1 to find him guilty of a "dissimilar" arson merely because he is a likely person to commit heinous criminal acts. This was precisely the point Justice Mosk made for the court in People v. Haskett, supra, 30 Cal.3d at page 867, 180 Cal.Rptr. 640, 640 P.2d 776. (See discussion, infra, at pp. 769-770 of 187 Cal.Rptr., atpp. 1296-1298 of 654 P.2d.)
Second, the penalty determination itself is greatly affected by proof of other crimes. The fact that these crimes may be dissimilar to the capital murders is unlikely to alter that well-established fact. Indeed, since proof of dissimilar crimes shows an entirely separate type of criminality in addition to the depravity of the current crimes, the prejudicial effect of such proof is great.
This is particularly true when the decision the jury must make is the inherently subjective determination as to whether a defendant is the type of person who should live or die. In this context, it is significant that proof of separate crimes, even if dissimilar, "breeds a 'tendency to condemn [the defendant] because he has escaped unpunished from other offenses,' " and tends to render the jury " 'unable to identify with a defendant of offensive character.' " (See People v. Thompson, supra, 27 Cal.3d at p. 317, 165 Cal.Rptr. 289, 611 P.2d 883, quoting from 1 Wigmore, Evidence, § 194, p. 650, and Note (1964) 78 Harv.L.Rev. 426, 436.) It seems evident that these factors operated against the appellant in this case. Appellant's alleged prior criminal activity was one factor distinguishing him from his codefendant, Penka, who did not receive the death penalty despite the fact that he instigated and paid for the murders.
In People v. Haskett, supra, 30 Cal.3d at page 867, 180 Cal.Rptr. 640, 640 P.2d 776, the identical due process challenge to former Penal Code section 190.3, subdivision (b) was raised. However, since the penalty in that case was reversed on other grounds and the case remanded to the trial court for retrial of the penalty issue, the court did not resolve the question. "Because the issue of penalty will be determined on retrial by a jury different from the one that convicted defendant, the potential for bias of which he complains has been eliminated, [187 Cal.Rptr. 770] and we need not reach the constitutional question in this case." (Ibid. )
Here, the majority seem to argue that the advantages to the appellant of separate juries are not worth the administrative inconvenience and expense entailed. They note that the new penalty jury would be told all of the circumstances of appellant's murder convictions, since the circumstances of the crime are a required factor in the penalty determination (former Pen.Code, § 190.3, subd. (a)). The majority appear to reason that a jury which heard the circumstances surrounding a crime would be just as affected by this knowledge as one which had convicted appellant of the crime.
However, as Haskett impliedly found, hearing the facts underlying a conviction is not the same as actually deliberating on the charge and voting for a verdict of guilt. Courts have frequently held that jurors who have participated in prior criminal proceedings against an accused must be disqualified from participating in a current trial. (Donovan v. Davis (4th Cir.1977) 558 F.2d 201, 202-203; Government of Virgin Islands v. Parrot (3d Cir.1977) 551 F.2d 553, 554; Mottram v. Murch (1st Cir.1972) 458 F.2d 626, 630-631, revd. on other grounds 409 U.S. 41, 93 S.Ct. 71, 34 L.Ed.2d 194; see also, Leonard v. United States (1964) 378 U.S. 544, 544-545, 84 S.Ct. 1696, 12 L.Ed.2d 1028.)
Thus, the procedure adopted in Haskett for retrial does eliminate much of the prejudice a defendant in a capital case would suffer. It ensures that the very same jury that actually decides a defendant's guilt of first degree, special circumstance murder will not then be expected to render an impartial decision on an unrelated offense at the penalty phase of the trial. Further, to whatever extent the Haskett split-jury procedure fails to adequately protect defendants' constitutional rights--a point the majority seem to imply--our obligation is to consider a more effective solution to the problem, not to throw up our hands and conclude that the rights need not be protected.
One possible improvement would be to require that, when the prosecution seeks to introduce evidence of other criminal activity for which no conviction has been obtained, the state submit the evidence to a completely separate jury, empaneled only to determine guilt of the other crimes. The evidence would then be presented to the penalty jury only if the independent jury had determined, beyond a reasonable doubt, that the defendant had committed these crimes. This procedure would ensure that penalty juries do not rely on evidence of other "criminal activity" unless a truly impartial jury has concluded that the defendant's actions did constitute a crime.
Such a procedure would also have the beneficial effect of separating the determination of guilt of the penalty-phase crimes from the deliberations as to the penalty. A penalty-phase jury is asked to make the most difficult decision demanded by our judicial system. When the prosecution introduces evidence of other crimes at the penalty phase, the awesome responsibility assumed by the jury is compounded since they must also decide whether guilt of another crime has been proved beyond a reasonable doubt. Jury instructions become lengthy, complex, and confusing, since the jury must be instructed both in the law applicable to a penalty decision and the general rules of law governing criminal convictions. Consider this case as an example. The penalty-phase jurors were required to absorb lengthy explanations of accomplice testimony, corroboration, and the meaning of the beyond-a-reasonable-doubt standard, while at the same time attempting to understand the rules of law governing the life-or-death decision awaiting them.
Asking one jury to decide (1) guilt of murder and special circumstances, (2) guilt of prior crimes, and (3) penalty, thus endangers the determinations both of guilt of the other crimes and of penalty. The jurors' participation in the guilt phase of the trial is likely to render them unable to make an impartial decision on the other-crimes evidence. In addition, their deliberations on the other-crimes evidence may interfere with their penalty decision. Empaneling a [187 Cal.Rptr. 771] separate jury to determine guilt of other crimes would eliminate both of these problems.
As appellant notes, there are also intermediary procedural possibilities that would alleviate some, if not all, of these dangers. Appellant suggests that the judge be required to make a preliminary determination as to the evidence of other crimes and whether it could reasonably support a finding of guilt beyond a reasonable doubt. The jury would not hear any evidence of the other crimes unless this preliminary showing was adequate. At a minimum this would ensure that jurors are not burdened with prejudicial details of unrelated crimes unless the evidence of those crimes is reasonably strong.
Another option would be to divide the penalty phase into two parts, one to consider guilt of other crimes and one to decide penalty. This would separate the two tasks, thus eliminating the possible confusion caused by combining them. It would also enable the penalty jury to focus on the difficult penalty determination, with its concentration unbroken by deliberations on unrelated crimes.
Finally, we may find it necessary to follow the course of the Washington Supreme Court in State v. Bartholomew, supra, 654 P.2d 1170, and permit the same jury to sit at both phases of a capital trial but forbid on constitutional grounds the admission of evidence of other crimes where no conviction has been obtained.
The question as to whether any or all of these proposals are constitutionally required cannot be ignored. Appellant has raised these issues. He argues that the penalty-phase procedure employed here prejudiced the jury against him. These complex issues deserve careful analysis and a thoughtful resolution.
The majority also err in holding that the jury's conclusion as to appellant's guilt of arson was not required to be unanimous.
This court has long recognized that evidence of prior crimes "may have a particularly damaging impact" on the decision to impose the death penalty. (People v. Polk (1965) 63 Cal.2d 443, 450, 47 Cal.Rptr. 1, 406 P.2d 641.) Prior decisions have noted that "[e]vidence of a prior criminal record is the strongest single factor that causes juries to impose the death penalty ...." (People v. McClellan, supra, 71 Cal.2d at p. 804, fn. 2, 80 Cal.Rptr. 31, 457 P.2d 871, citing Special Issue, A Study of the California Penalty Jury in First-Degree-Murder Cases (1969) 21 Stan.L.Rev. 1297, 1326-1336.)
In recognition of the powerful impact of other-crimes evidence, this court has imposed a series of limitations on the type of evidence which may be admitted at the penalty phase and on the level of proof required before the jury can consider evidence of prior criminal activity. Primary among these protections is the rule that evidence of other crimes may be considered by the jury only if proved beyond a reasonable doubt. "Since evidence of other crimes ... may have a particularly damaging impact on the jury's determination whether the defendant should be executed, we recognized in People v. Terry  61 Cal.2d 137, 149, fn. 8, 37 Cal.Rptr. 605, 390 P.2d 381, that there should be an exception to the normal standard of proof at the trial on the issue of penalty [citation]." (People v. Polk, supra, 63 Cal.2d at pp. 450-451, 47 Cal.Rptr. 1, 406 P.2d 641.) Thus, "at the trial on the issue of penalty [the jury] must be convinced beyond a reasonable doubt" that the defendant committed other crimes. (Id., at p. 451, 47 Cal.Rptr. 1, 406 P.2d 641; People v. McClellan, supra, 71 Cal.2d at pp. 804-805, 80 Cal.Rptr. 31, 457 P.2d 871.)
Implicit in the cases setting forth the beyond-a-reasonable-doubt standard is the requirement that the jury's determination be unanimous. The reasonable-doubt standard was formulated as part of a comprehensive effort aimed at increasing the reliability of a decision of death. Recognizing the substantial impact of evidence of other crimes on that decision, the Polk-McClellan line of holdings sought to promote reliability by permitting such evidence to be considered [187 Cal.Rptr. 772] only if it were clear beyond a reasonable doubt that the accused had actually committed those other crimes.
This standard loses much of its effectiveness as a hedge against hasty or ill-conceived death penalty decisions if the jurors are left to apply it without unanimity. When a unanimous verdict is required at a penalty-phase determination of guilt of other crimes, the standard guarantees that evidence of other crimes will not be considered if even one juror retains a reasonable doubt as to whether the accused committed the other crimes. As interpreted by the majority, the standard is turned on its head. Evidence of other crimes will be considered even if only one juror is convinced beyond a reasonable doubt of the accused's guilt of those crimes. That does nothing to enhance the reliability of the death penalty decision.
I cannot believe that this court intended to apply the most stringent standard of proof recognized in our judicial system and at the same time dilute it by eliminating the requirement of unanimity. My conclusion is bolstered by the fact that all of the cases discuss the jury's consideration of evidence of other crimes. (See, e.g., People v. Stanworth (1969) 71 Cal.2d 820, 840-841, 80 Cal.Rptr. 49, 457 P.2d 889; People v. Terry, supra, 61 Cal.2d at p. 149, fn. 8, 37 Cal.Rptr. 605, 390 P.2d 381.) None refers to individual jurors. Thus, Terry, the first case to declare the rule, states, a "defendant should not be subject to a finding of a jury that he committed prior crimes unless his commission of such prior crimes has been proven beyond a reasonable doubt." (61 Cal.2d at p. 149, fn. 8, 37 Cal.Rptr. 605, 390 P.2d 381, emphasis added.) Implicit in this language is the assumption that the jury will reach a single conclusion, i.e., a unanimous one.
This careful use of language is not just coincidence. This court has indicated that in erecting safeguards around other-crimes evidence at a penalty trial, the guiding principle is that "in the penalty trial the same safeguards should be accorded a defendant as those which protect him in the trial in which guilt is established." (People v. Terry, supra, 61 Cal.2d at p. 149, fn. 8, 37 Cal.Rptr. 605, 390 P.2d 381.) Thus, for example, this court has held that, "[b]ecause of the possible great impact on the jury of the evidence of other crimes [at] the penalty trial the testimony of an accomplice to such crimes must be corroborated." (People v. McClellan, supra, 71 Cal.2d at p. 804, 80 Cal.Rptr. 31, 457 P.2d 871, fn. omitted; see also, People v. Varnum (1967) 66 Cal.2d 808, 814, 59 Cal.Rptr. 108, 427 P.2d 772.)
Other decisions require that "evidence of the earlier crime must meet the rules of admissibility governing proof of that crime or be otherwise properly admissible in the penalty proceeding." (People v. Purvis (1961) 56 Cal.2d 93, 97, 13 Cal.Rptr. 801, 362 P.2d 713; see also, People v. Hamilton (1963) 60 Cal.2d 105, 129-131, 32 Cal.Rptr. 4, 383 P.2d 412.) Therefore, an earlier crime may not be proved by hearsay. (People v. Purvis, supra.) "[I]f the prosecution attempts to prove prior crimes, the defendant is entitled to the protection of the rule which prohibits the admission of a confession until the corpus delicti has been proved." (People v. Terry, supra, 61 Cal.2d at p. 149, fn. 8, 37 Cal.Rptr. 605, 390 P.2d 381; see also, People v. Hamilton, supra, 60 Cal.2d at pp. 129-131, 32 Cal.Rptr. 4, 383 P.2d 412.)
Obviously, proof of guilt of a crime by a unanimous jury is one of the "safeguards ... which protect [a defendant] in the trial in which guilt is established." (See People v. Terry, supra, 61 Cal.2d at p. 149, fn. 8, 37 Cal.Rptr. 605, 390 P.2d 381.) Inasmuch as this court has incorporated into the penalty phase the guilt-trial protections which range from the corpus delicti rule to the beyond a reasonable doubt standard, it is inconceivable that the court did not intend and assume that the vital protection of juror unanimity would also be accorded a defendant at a penalty trial. To allow a death verdict to be based upon a showing which would not result in a conviction is to undermine the stringent rules of proof carefully constructed to protect against hasty and ill-founded death penalty determinations.
[187 Cal.Rptr. 773]The failure to instruct the jury that the decision as to guilt of arson had to be unanimous was fatal.
Appellant next argues that the required reasonable doubt instructions at the penalty phase were inadequate to inform the jury of the relevance of the evidence of arson. This contention has merit.
At the close of the penalty phase, the trial court instructed the jurors that they should "consider, take into account and be guided by the following factors, if applicable ...." The aggravating and mitigating factors cited in former section 190.3 were read to them. (See CALJIC No. 8.84.1 (4th ed. 1979).) The second of those factors was described as "the 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." (See former § 190.3, subd. (b).)
The trial court then stated, "The Court will instruct you that as to the alleged presence of criminal activity by the defendant Elbert Easley, the following instructions will apply." The court proceeded to define the crime of arson, gave instructions as to motive, admissions, confessions, identity, direct and circumstantial evidence, and the credibility of witnesses. The jury was instructed that if there were a reasonable doubt as to appellant's guilt, then "he is entitled to a verdict of not guilty." The judge then said, "Those are the instructions relating to the alleged criminal activity by Mr. Easley."
Appellant argues that these instructions were inadequate to inform the jury that it should disregard all evidence of the alleged arson unless it found him guilty of the arson beyond a reasonable doubt. This claim has merit.
It is "well settled that during the penalty trial the jury should be instructed that they may consider evidence of other crimes only when the commission of such crimes is proved beyond a reasonable doubt. [Citations.]" (People v. McClellan (1969) 71 Cal.2d 793, 804, 80 Cal.Rptr. 31, 457 P.2d 871, and cases cited. See also People v. Floyd (1970) 1 Cal.3d 694, 716, 83 Cal.Rptr. 608, 464 P.2d 64; People v. Brawley (1969) 1 Cal.3d 277, 299, 82 Cal.Rptr. 161, 461 P.2d 361.) The majority do not dispute this requirement.
This rule was founded on a recognition that evidence of prior crimes "may have a particularly damaging impact on the jury's determination whether the defendant should be executed ...." (People v. Polk (1965) 63 Cal.2d 443, 450, 47 Cal.Rptr. 1, 406 P.2d 641.) Failure to instruct on the requirement of proof beyond a reasonable doubt is prejudicial and requires reversal of the penalty judgment. (People v. McClellan, supra, 71 Cal.2d at p. 806, 80 Cal.Rptr. 31, 457 P.2d 871.) 2
The majority acknowledge that an instruction that the jury may consider only those crimes proved beyond a reasonable doubt is one of the general principles governing penalty phase deliberations and must be given sua sponte by the trial court. (People v. Stanworth (1969) 71 Cal.2d 820, 841, 80 Cal.Rptr. 49, 457 P.2d 889; People v. McClellan, supra, 71 Cal.2d at p. 806, 80 Cal.Rptr. 31, 457 P.2d 871.)
Ignoring the holdings of these cases, the Attorney General argues that the jury can be permitted to consider evidence of prior violent criminal activity even though that activity is not proved beyond a reasonable doubt. He bases his argument on the plurality opinion in People v. Frierson (1979) 25 [187 Cal.Rptr. 774] Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587 where three members of this court concluded that there is no constitutional requirement that aggravating circumstances be found to be true beyond a reasonable doubt. (Id., at p. 180.) However, the decisions in People v. Polk, supra, 63 Cal.2d at pages 450-451, 47 Cal.Rptr. 1, 406 P.2d 641; and People v. McClellan, supra, 71 Cal.2d at pages 804-806, 80 Cal.Rptr. 31, 457 P.2d 871, were based on the recognition that evidence of other criminal activity should be treated as "an exception to the normal standard of proof" at the penalty trial. (Polk, supra, 63 Cal.2d at p. 450, emphasis added.) Thus, even though other aggravating circumstances need not be proved beyond a reasonable doubt, Polk and McClellan mandate application of this higher standard of proof when the prosecution seeks to prove that the defendant has committed prior violent criminal activity.
An examination of the jury instructions at appellant's penalty trial discloses no instruction as to the necessity of disregarding all evidence of arson unless the charge was found to be true beyond a reasonable doubt. The jury was instructed as if it had two independent tasks, determination of whether appellant was guilty of the crime of arson and determination of the penalty he should receive for the crime of murder. As to the first task, the jury was properly instructed that it should find appellant not guilty unless convinced beyond a reasonable doubt. However, it was never told of the connection between the two tasks--never told that it could consider evidence of the arson charge in its penalty deliberations only if it found guilt beyond a reasonable doubt. The instruction telling the jury to apply the reasonable doubt standard when determining whether appellant was guilty of arson was not sufficient to instruct the jury to apply the same high standard of proof to the crucial question of what evidence could be considered in the penalty determination.
The prejudice caused by the absence of an instruction on this point was exacerbated by the inclusion of the instruction to "consider all of the evidence which has been received during any part of the trial in this case." This court must assume that the jurors followed this instruction. If they did, they were to consider all of the evidence before them. As a result, it is entirely possible that the jury thought it permissible to consider evidence of the crime of arson in its penalty deliberations, even if it found that appellant was not guilty beyond a reasonable doubt of that crime.
Finally, after the jurors retired to deliberate, they returned and asked the trial court to reread the instructions on the factors to be considered in deciding penalty. The court instructed them in the language of section 190.3, including subdivision (b), "the presence or absence of criminal activity by the defendant ...." As a result, the jury's attention was once again focused on the possibility of prior criminal activity, without limiting the issue to criminal activity that had been proved beyond a reasonable doubt.
The majority argue that this omission was cured by the fact that defense counsel, in his argument to the jury at the penalty trial, stated the correct rule of law. However, it is the duty of the trial court to instruct the jury on the applicable rules of law. (People v. Vann (1974) 12 Cal.3d 220, 226, 115 Cal.Rptr. 352, 524 P.2d 824; Pen.Code, §§ 1093, subd. 6; 1127.) The court cannot rely on counsel's arguments to cure deficiencies in jury instructions. (People v. Vann, supra, 12 Cal.3d at p. 227, fn. 6, 115 Cal.Rptr. 352, 524 P.2d 824; Parker v. Atchison, T. & S.F. Ry. Co. (1968) 263 Cal.App.2d 675, 680, 70 Cal.Rptr. 8.)
Further, the jury is bound to follow the law as enunciated by the trial court. (Pen.Code, § 1126.) The judge in this case began the penalty phase instructions by stating, "Ladies and gentlemen of the jury, now that you have heard the evidence and argument of counsel, the Court shall instruct you on the applicable law." The jurors were told that it was their duty "to apply the rules of law that I state to you .... [p] It is my duty in these instructions to explain to you the rules of law that apply [187 Cal.Rptr. 775] to this case. You must accept and follow the rules of law as I state them to you." Once again, this court must assume that the jurors followed these instructions and applied only those rules of law on which the trial court instructed them.
People v. Vann, supra, 12 Cal.3d at pages 225-228, 115 Cal.Rptr. 352, 524 P.2d 824, presented a similar factual situation. In that case, the trial court inadvertently omitted a specific instruction about proof beyond a reasonable doubt. The court did give instructions from which the jurors could have inferred the reasonable-doubt standard, including an instruction that the jury could not convict based on circumstantial evidence unless "each fact ... has been proved beyond a reasonable doubt," and an instruction that "evidence of good character may be sufficient to raise a reasonable doubt" of guilt. (Id., at pp. 226, 227, 115 Cal.Rptr. 352, 524 P.2d 824.) During jury selection, the jury was told that the prosecution would have the burden of proving guilt beyond a reasonable doubt and to a moral certainty. Finally, defense counsel told the jurors during closing argument that they were required to find each element of the crime beyond a reasonable doubt.
This court held that the combination of general instructions alluding to the proper standard, the explicit instruction during jury selection, and defense counsel's argument to the jury, was not sufficient to cure the error caused by the failure to give a specific instruction defining the correct standard of proof. The general references to reasonable doubt fell "far short of apprising the jurors that defendants were entitled to acquittal unless each element of the crimes charged was proved to the jurors' satisfaction beyond a reasonable doubt ...." (Id., at p. 227, 115 Cal.Rptr. 352, 524 P.2d 824.)
Similarly, the instructions in this case fell "far short of apprising the jurors" that evidence of the alleged arson could be considered in the penalty deliberations only if they found appellant guilty of the arson. Neither the general instructions about reasonable doubt nor the arguments of counsel were sufficient to cure the error caused by the trial court's failure to instruct the jury on a decisive point of law.
As this court stated in Vann, a defendant is "entitled to have the jurors fully instructed as to their responsibility in making their findings. Any material failure to give such instructions would constitute reversible error." (12 Cal.3d at p. 225, 115 Cal.Rptr. 352, 524 P.2d 824.) The error in instructing the jury about the evidence of the crime of arson deprived appellant of a fair penalty trial and requires reversal.
I cannot agree with the majority's conclusion that prospective juror Madler was properly excused for cause. Her voir dire answers did not make it "unmistakably clear" that she would "automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case ...." (Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21, 88 S.Ct. 1770, 1776, fn. 21, 20 L.Ed.2d 776.)
The majority's lengthy quotation from Madler's voir dire examination demonstrates that although generally opposed to the death penalty and reluctant to impose it, she would not "automatically" vote against it. Her answers were replete with equivocal, hedged responses: "Maybe I could say it [the death penalty], but I sure wouldn't want to"; "all things are possible and you could do something that you don't want to do, but I would say that under normal conditions, I would never vote for it"; "I don't know what would happen if I did reach that stage of the trial, how I would feel. I don't--I'm against the death penalty and I can't imagine anything that would make me feel differently. However, it's always possible that something would."
The majority present two justifications for their conclusion that this ambiguous voir dire constitutes an "unmistakably clear" statement that Madler would "automatically" vote against imposition of capital punishment. First, they rely on Madler's [187 Cal.Rptr. 776] final answer, when, in response to the question, "Could you conceive of a situation in which you would vote for the death penalty?" she replied, "No." Second, they appear to hold that where a prospective juror's answers are ambiguous, the trial court's decision to excuse the juror for cause must be upheld. I would reject both of these arguments.
Although this court has held that a final, unambiguous answer to a Witherspoon question may be sufficient to provide the "unmistakably clear" response required by Witherspoon, Madler's final answer was not unambiguous. Her final response said no more than that she could not conceive of any situation in which she would vote for the death penalty. This answer left open the possibility that if presented with certain facts which she could not at that time imagine, she could vote for the death penalty. Rather than eliminate the possibility that she could impose capital punishment, her final answer was fully consistent with that possibility. As this court noted in People v. Velasquez (1980) 26 Cal.3d 425, 443, footnote 13, 162 Cal.Rptr. 306, 606 P.2d 341, "a juror's inability to think of a hypothetical case in which she would favor a death verdict is not sufficient to disqualify the juror under Witherspoon; only a clear and definite statement that in no case would she vote for death sufficed to excuse her for cause."
This court has previously noted the distinction between an unambiguous statement that a prospective juror would automatically vote against the death penalty and a statement which merely reflects the individual's inability to imagine a situation which would justify capital punishment. For example, in People v. Vaughn (1969) 71 Cal.2d 406, 413, 78 Cal.Rptr. 186, 455 P.2d 122, a juror was asked, "[W]ould it be fair to say that under no circumstance would you impose the death penalty in any kind of a situation that could be brought before you?" She replied, "Not being able to think of enough cases, I can't say for sure, but I certainly can't think of any myself right now in which I could possibly impose a death penalty." (Emphasis omitted.) Her exclusion for cause was held to be erroneous.
Similarly, in People v. Velasquez, supra, 26 Cal.3d at page 437, 162 Cal.Rptr. 306, 606 P.2d 341, a juror stated, "I think there might be a hypothetical case in which a crime that was so heinous was committed that I would consider the death sentence. But I have not been able to think of a hypothetical of that nature." As in Vaughn, the juror's exclusion was held to be erroneous. These cases are no different from the instant case. Madler's statement that she could not conceive of any situation in which she would vote to impose the death penalty indicated only her inability to think of a hypothetical case which would justify capital punishment. Witherspoon requires a clear statement that no such cases exist--that the prospective juror would never vote for death. Madler's response did not constitute such a clear statement.
Further, any ambiguity in a prospective juror's voir dire may be resolved by reference to the context of her answer. (See People v. Williams (1969) 71 Cal.2d 614, 632, 79 Cal.Rptr. 65, 456 P.2d 633; In re Hill (1969) 71 Cal.2d 997, 1019, 80 Cal.Rptr. 537, 458 P.2d 449.) Reading Madler's final answer in light of her previous statements, it is clear that she did not intend to state flatly that she would never vote to impose capital punishment. Rather, as she had already said repeatedly, although she could not imagine any situation that would lead her to impose a death sentence, she could not rule out the possibility that something would.
The majority's reliance on People v. McGautha (1969) 70 Cal.2d 770, 776-777, 76 Cal.Rptr. 434, 452 P.2d 650, is misplaced. Any implication in McGautha that a prospective juror's inability to conceive of a case meriting the death sentence justifies excusing the juror for cause cannot survive this court's holdings in cases such as Vaughn and Velasquez. A juror's inability to think of hypothetical cases in which he or she would favor the death penalty does not satisfy Witherspoon 's stringent standard.
[187 Cal.Rptr. 777]Finally, the majority rely on the argument that the trial court's resolution of the ambiguity in Madler's voir dire answers must be upheld. They cull this rule from People v. Floyd (1970) 1 Cal.3d 694, 725, 83 Cal.Rptr. 608, 464 P.2d 64, and People v. Linden (1959) 52 Cal.2d 1, 22, 338 P.2d 397. The statement from Floyd relied on by today's majority was dictum. And the Linden holding, which preceded the United States Supreme Court decision in Witherspoon, cannot be squared with that case's requirement that only an "unmistakably clear" indication that a juror would "automatically" vote against the death penalty is a proper basis for exclusion. This court criticized the Linden rule in People v. Velasquez, supra, 26 Cal.3d at page 442, 162 Cal.Rptr. 306, 606 P.2d 341, footnote 12, questioning whether " 'the rule quoted from Linden ... could ever "comport fully" with the Witherspoon holding that it must be "unmistakably clear" the excluded juror would automatically vote against imposition of the death penalty. If the juror gave "conflicting answers" to the question as to whether he could ever impose the death penalty and the conflict is not subsequently resolved on voir dire, it simply cannot be said that his automatic opposition to the death penalty is "unmistakably clear." ' " (Quoting from People v. Floyd, supra, 1 Cal.3d at p. 741, 83 Cal.Rptr. 608, 464 P.2d 64 (dis. opn. of Peters, J.).)
It is the juror's state of mind, not the trial court's, that is at issue here. If the voir dire does not disclose an unambiguous statement of automatic opposition to the death penalty, the juror may not be excused for cause. Since Madler did not make it unmistakably clear that she would automatically vote against the death penalty, her exclusion was erroneous. This error requires reversal of the penalty judgment.
I must also object to the majority's one-sentence dismissal of appellant's claim that five other prospective jurors were improperly excused for cause. Although my independent review of the record convinces me that the five were properly excused, the majority opinion should outline the facts underlying appellant's claims and explain why it reached its conclusion. Appellant has a right to a full explanation of the court's decision to uphold his sentence of death.
The concurring opinion of my colleague Justice Kaus tenders the suggestion that this court's affirmance of appellant's judgment of death may somehow not be final because "the affirmance does not preclude defendant from seeking proportionality review in this court." (Conc. opn., ante, at p. 767 of 187 Cal.Rptr., at pp. 1294-1295 of 654 P.2d.) It is asserted that proportionality review does not have "anything to do with" the legal issues cognizable on appeal from a judgment of death and thus needs to be addressed, if at all, only in some other, unspecified proceeding before this court. (Id., at pp. 766-767 of 187 Cal.Rptr., at pp. 1293-1295 of 654 P.2d.) With all due respect, this assertion is simply ipse dixit, devoid of legal foundation and dangerous precedent.
The claim that proportionality review "has [nothing] to do with" a death penalty appeal is, at best, a debatable one. The concurring opinion cites no case law or statutory support for its assertion, and I have come across none. It is by now unassailable that at least some form of "prompt" 3 and "meaningful" 4 appellate review is necessary 5 "to ensure that death sentences are not imposed capriciously or in a freakish [187 Cal.Rptr. 778] manner." 6 Since the function of proportionality review is similarly "to prevent caprice in the decision to inflict the [death] penalty," 7 it is difficult to understand why proportionality review is deemed irrelevant to "the legal questions raised by an appeal from a judgment imposing the death penalty." (Conc. opn., ante, at p. 767 of 187 Cal.Rptr., at pp. 1294-1295 of 654 P.2d.) Indeed, what the concurring opinion deems to be irrelevant to a capital appeal in this state is frequently a part of the direct appeal process in our sister states. For example, proportionality review was termed "an important additional safeguard" provided by the automatic appeal process in the Georgia death penalty scheme upheld in Gregg. (428 U.S. at p. 198, 96 S.Ct. at p. 2936.) It will, therefore, come as a surprise to informed readers to learn that proportionality review has not "anything to do with" the issues involved in a direct appeal from a judgment of death in California.
I would note further that if the proportionality review required of this court is nothing more than the application of the usual test of In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, 8 then certainly that form of proportionality review is cognizable on direct appeal. Numerous prior decisions of this court and the Courts of Appeal have so applied the Lynch test. 9
The concurring opinion's unsupported assertion that proportionality review is not a matter to be considered on direct appeal also runs afoul of legislative directive. Penal Code section 190.6 expresses a policy that the validity of judgments of death should be finally determined by this court as promptly as possible. However, if proportionality review is not appropriate on direct appeal, then it will have to occur at some proceeding undertaken after the direct appeal results in affirmance. And since any proportionality review must "be afforded to each person condemned to death ..." (conc. opn., ante, at p. 767 of 187 Cal.Rptr., at pp. 1294-1295 of 654 P.2d), no death sentence will be speedily affirmed; at least two appellate proceedings will be required. This clearly does not comport with the spirit or the letter of section 190.6 of the Penal Code.
There is yet another problem with the concurring opinion. Although the appellant in this case is told he is "not preclude[d] from seeking proportionality review in this court," he is not advised how to go about it. Another capital defendant whose death sentence was affirmed by this court on direct appeal attempted to raise the issue of proportionality review by means of habeas corpus. (See In re Robert Alton Harris, Crim. No. 22380.) This court denied his petition--summarily and without any indication that he had merely requested the wrong type of relief. If there is some post appeal procedure for proportionality review, as is necessarily implied by the concurring opinion, this court has kept its existence a dark secret.
It is true that the issue of proportionality review is within the technical scope of the cause before this court in In re Jackson, Crim. No. 22165. However, that case raises other legal issues as well, including a more expansive factual presentation regarding an issue which lost by a bare 4-to-3 vote on direct appeal. Thus, the issuance of the order to show cause in Jackson does not necessarily indicate we will reach the issue of proportionality there.
Moreover, it is doubtful that the burden of raising the issue of proportionality review may or should be placed on a capital defendant, as the concurring opinion suggests. As that opinion recognizes, proportionality review "will have to be afforded to each person condemned to death ...." (Ante, at p. 767 of 187 Cal.Rptr., at pp. 1294-1295 of 654 P.2d.) Yet, like a trial [187 Cal.Rptr. 779] court, an individual capital defendant and his counsel are singularly unequipped to gather information as to the "consistency of punishment on a statewide basis." (See id., at p. 765 of 187 Cal.Rptr., at pp. 1292-1293 of 654 P.2d.) Thus, proportionality review "would solely be a function of this court" (id., at p. 767 of 187 Cal.Rptr., at pp. 1294-1295 of 654 P.2d)--and, I would add, a function that this court has not yet [654 P.2d 1307] undertaken, either in any direct appeal or in any alternative procedure.
In the end, I fear that the concurring opinion's unsupported assertion may have a detrimental impact on this court's consideration of automatic appeals. It leads to the conclusion that an affirmance of a death verdict is not actually an affirmance, since it is not really final.
At the trial level, we have held that it is of utmost importance that a juror's sense of responsibility in a death case not be diluted by reference to available appeals. (See People v. Robertson (1982) 33 Cal.3d 21, 188 Cal.Rptr. 77, 655 P.2d 79; People v. Linden (1959) 52 Cal.2d 1, 26-27, 338 P.2d 397.) The same considerations apply to those of us who sit on this court, as well. We, too, bear a heavy responsibility in reviewing appeals from judgments of death. That sense of responsibility will be dangerously diluted if we attempt to placate our doubts by believing that we are "making mere tentative determinations" which later court proceedings can mitigate. (See id., at p. 27, 338 P.2d 397.)
BROUSSARD, Justice, concurring and dissenting.
I concur in the judgment to the extent that it affirms defendant's guilt of first degree murder with the special circumstances of murder for hire (former Pen.Code, § 190.2, subd. (a)) and multiple murder (id., subd. (c)(5)). I dissent from the affirmance of the penalty verdict. For the reasons stated in part I(B) of the Chief Justice's opinion, the trial court should have instructed the penalty jury that in determining whether defendant committed the crime of arson, its verdict must be unanimous. I also agree with the Chief Justice that the jury must be instructed to disregard aggravating crimes not proved beyond a reasonable doubt; I explain my views on this subject in my concurring opinion in People v. Robertson (1982) ante, 33 Cal.3d at page 188, --- Cal.Rptr. 77, 655 P.2d 79. I express no opinion as to the other issues discussed by the Chief Justice.
[*] See 34 Cal.3d 858 for subsequent opinion.
The Legislature has directed the Board of Prison Terms to conduct a form of proportionality review with respect to noncapital sentences imposed pursuant to the Determinate Sentencing Act. (See Pen.Code, § 1170, subd. (f).) To my knowledge, neither Frierson, Jackson nor any other decision of this court has considered what effect--if any--the existence of this statutory procedure has on the question of proportionality review in capital cases.