Opinion
12-3-1987
, 745 P.2d 573 The PEOPLE, Plaintiff and Respondent, v. Ronald Lee BELL, Defendant and Appellant. Crim. 20879.
Philip M. Brooks, Officer of the State P.D., San Francisco, for defendant and appellant. Ronald Matthias, Atty. General's Office, San Francisco, for plaintiff and respondent.
The PEOPLE, Plaintiff and Respondent,
v.
Ronald Lee BELL, Defendant and Appellant.
Supreme Court of California,
In Bank.
Dec. 3, 1987.
Rehearing Granted Jan. 28, 1988.
Philip M. Brooks, Officer of the State P.D., San Francisco, for defendant and appellant.
Ronald Matthias, Atty. General's Office, San Francisco, for plaintiff and respondent.
MOSK, Justice.
This is an automatic appeal (Pen.Code, § 1239, subd. (b)) from a judgment imposing a sentence of death under the 1977 death penalty legislation (Stats.1977, ch. 316, §§ 4-14, pp. 1256-1262, former Pen.Code, §§ 190-190.6). 1
Defendant Ronald Bell was charged with murder (§§ 187, 189), attempted murder (§§ 187, 664), robbery (§ 211), and possession of a concealable firearm by an ex-felon (§ 12021). The information also alleged that defendant used a firearm in the commission of the first three offenses, (§ 12022.5), that the attempted murder and robbery involved the infliction of great bodily injury (§ 12022.7), and that the murder occurred during the commission of a robbery, thereby constituting a special circumstance (former § 190.2, subd. (c)(3)(i)).
Defendant was tried twice. In his first trial the jury found him guilty of possession of a concealable firearm but was unable to reach a verdict as to the other counts. Defendant moved for and was granted a new trial as to the firearm possession conviction, and that charge was consolidated with the counts for which a mistrial had been granted.
In his second trial the jury convicted defendant on all counts and found the special circumstance allegation and all enhancement allegations to be true. The jury fixed the penalty at death. As will appear, we affirm the judgment in all respects. I. FACTS Guilt Phase Evidence
On February 2, 1978, Wolff's Jewelry Store in Richmond was robbed and in the course of the robbery two employees were shot, one fatally. At trial, several eyewitnesses identified defendant Ronnie Bell as the person responsible for the shootings. Other evidence, however, tended to discredit the eyewitness testimony and suggested that defendant's brother Larry could have been the responsible party. The principal theory advanced by the defense was that of mistaken identification.
The robbery took place about 4 p.m. Shortly before this time, Ernestine Jackson, age 28, drove to Wolff's Jewelry Store to pick up a watch that had been left for repair. Accompanying Ernestine were her sister, Ruby Judge, age 14, and her nieces, Dorothy Dorton, age 13, and Alicia Carter, age 4. Ernestine parked in a red zone near the store and sent Ruby in for the watch. The prosecution's case was based primarily on the testimony of Ernestine, Dorothy, and Ruby concerning the events they witnessed after arriving at the store.
The testimony was essentially as follows: While Ernestine waited in the car with her nieces, she observed defendant walking in her direction. As he approached her car, she lowered a window and said, "How're you doing, Ronnie Bell?" He replied, "Who is it?" She answered, "Ernestine." He looked in the car window, said, "Hi there," and walked away.
After this exchange, Ernestine turned to Dorothy and told her that defendant was supposed to have killed her (Dorothy's) father in 1968. 2 Dorothy replied that she wanted to "get a good look at him" and left the car. She followed the man down the street, momentarily lost sight of him, and concluded he may have walked into Wolff's Jewelry Store. She entered and found him inside.
At first, however, Dorothy believed the man in the store was not defendant but Larry Bell. Dorothy testified that she asked Ruby, who was waiting for the watch, to ask the man if his name was Larry Bell. Ruby testified, however, that she could not remember whether Dorothy told her to ask the man his name. Dorothy also testified that Ruby did ask the man if he was Larry Bell, and he said he was not. Ruby, however, remembered asking the man whether his name was Ronnie Bell, and he said it was not.
Shortly thereafter, the man shot two employees, seized some jewelry, and left the store. About this time, Ernestine saw defendant through her rear-view mirror: he was leaving the area of the store. She left the car and went into the store, where she found Dorothy and Ruby. Dorothy told her that "two men had got shot."
The police soon arrived and questioned the witnesses. Ernestine, Dorothy, and Ruby were taken to the police station and shown photographic lineups that included pictures of defendant. All three identified defendant as the man they had seen at the store. At trial, however, both Ernestine and Dorothy admitted that before seeing the photographs they had decided the man in the store was defendant, and when they were shown the lineups they were specifically looking for a picture of defendant and not simply looking to see if there was a photograph of anyone who resembled the man they saw in the store.
There was conflicting evidence on whether defendant and Larry Bell were similar in appearance. 3 Some witnesses testified they looked alike, while others said there were significant differences between them in height, build, and coloring. Specifically, Ernestine, Dorothy, and Ruby each testified that Larry was taller and lighter-skinned than defendant, and that they could clearly tell the two apart. Ernestine also testified she had attended school with defendant from 1962 to 1969, and had lived for a long time in the same neighborhood as the Bell family. She further testified that she knew Larry. In recent years, however, she had seen defendant only "a couple of times" and Larry "every now and then." Ruby and Dorothy had also been familiar with Larry before witnessing the shootings, and Ruby also knew defendant.
Evidence was presented that the murder weapon was probably a .38 caliber handgun, and that defendant's father had given defendant a gun of this type five weeks before the murder. The father testified, however, that the gun in question was originally given to him by Larry.
There was additional testimony concerning the police investigation. No tangible evidence--such as fingerprints--was found that connected defendant to the shootings. A ring that was probably stolen from the jewelry store during this incident, however, was found in Larry's possession.
Testimony was also given by Marilyn Mitchell, a friend of Larry. She stated that she and Larry spent the day of February 2 at the Sea Horse Motel, where they both "shot up" cocaine. On cross-examination, however, she admitted that Larry left the room for 30 to 45 minutes about the time it was getting dark. This meant that Larry could have walked to the jewelry store, committed the robbery, and returned to the motel in the amount of time that Marilyn said he was away from the room.
Finally, Dr. Robert Shomer, an expert witness for the defense, testified at length concerning eyewitness identification. 4 He explained that an individual's perception is strongly affected by his expectations and internal motivations; to a great extent, in other words, we see what we expect or want to see. Dr. Shomer concluded that the eyewitness testimony in this case was highly unreliable. He based his opinion on the following factors, which he believed cast serious doubt on the accuracy of the testimony: (1) Dorothy, Ernestine, and Ruby were all related to Alcus Dorton, a man that defendant had killed prior to this robbery. Thus, each had a reason to be biased against defendant and to expect him to be capable of committing violent acts. (2) The claim of all three witnesses that they bore no ill feelings towards defendant was unrealistic, and may have been indicative of strong unconscious feelings of hostility towards him. The fact that eight days after the robbery Ruby told a detective that defendant belonged in the electric chair strengthens the impression that she was a hostile witness. (3) Before Dorothy took a good look at the man in the jewelry store, Ernestine informed her that he was Ronnie Bell and had killed her father. As Ernestine was an adult and was the child's aunt, Dorothy was probably predisposed to believe that the man was indeed Ronnie Bell. Nevertheless, when she saw the man in the store she first thought it was Larry, not defendant. (4) The fact that Ruby asked the man his name also indicated that she, as well as Dorothy, was uncertain as to his identity. (5) Ruby and Dorothy were both young teenagers and thus their testimony was generally less reliable. Yet they were the only persons who actually witnessed the shootings. (6) A detective at the police station made certain comments suggesting his belief that defendant was the guilty party, and this could easily have influenced the witnesses when they made their subsequent identifications. (7) There were also minor discrepancies in the witnesses' testimony regarding less significant matters, such as the color or style of the clothing worn by the man who committed the shootings. Penalty Phase Evidence
In the penalty phase the prosecution presented evidence of three prior incidents of assaultive behavior. The 1968 incident involving Alcus Dorton was described by Leon Hunter. He testified that Dorton was drunk and put his arm around defendant's girlfriend. Defendant was angered and left for his home to get his gun. Dorton was bigger than defendant, followed him, and tried to get into his house. Hunter pulled Dorton away, but defendant emerged and fatally shot Dorton.
Bobby Ingram testified that in 1974 he beat defendant for having flirted with his wife, and that defendant later returned and shot three bullets through the front door of his home, one of which wounded Ingram in the leg. Vicky Clark testified to another incident that occurred in 1974. Defendant asked her whether she would purchase a gun from him at a bar. She refused, and later in the evening, as she was driving away from the bar, defendant fired one shot in her direction, apparently missing.
Defendant presented favorable testimony of his wife and sister, and of William Drake, Jr., a medical doctor with a specialty in neurology. Dr. Drake gave as his opinion that defendant had certain neurological disorders, probably resulting from two head injuries he suffered in childhood. These disorders, Dr. Drake concluded, impaired defendant's ability to reason abstractly and to foresee the consequences of his actions. II. GUILT PHASE ISSUES 1. Representative Jury
Defendant contends he was denied his constitutional right to an impartial jury drawn from a fair cross-section of the community. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) In Duren v. Missouri (1979) 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579, the Supreme Court declared that a defendant establishes a prima facie violation of the fair cross-section requirement by showing "(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." (Id. at p. 364, 99 S.Ct. at p. 668.) Defendant is Black and claims that Blacks were systematically excluded from venires by the jury selection procedures utilized in Contra Costa County at the time of his trial.
It is clear that Blacks comprise a cognizable group for purposes of fair cross-section analysis. (People v. Harris (1984) 36 Cal.3d 36, 51, 201 Cal.Rptr. 782, 679 P.2d 433.) Defendant fails, however, to meet the second requirement of the Duren test; he has not provided any statistical data to show that his jury was derived from an improperly constituted venire.
Defendant admits he did not establish the number of Blacks in the venire from which his jury was chosen. He argues, however, that he can rely entirely on the statistical evidence presented in People v. Buford (1982) 132 Cal.App.3d 288, 182 Cal.Rptr. 904. In Buford the Court of Appeal considered such evidence from four trials that had been held in Contra Costa County in 1978 or early 1979. The court found a "marked discrepancy" between the percentage of adult Blacks in the county and in the jury panels under consideration. (Id. at p. 296, 182 Cal.Rptr. 904.) There was also testimony that such underrepresentation was typical in Contra Costa juries during this period. (Id. at p. 291, 182 Cal.Rptr. 904.)
Defendant contends he need not prove that his particular venire or panel was unrepresentative because his jury was chosen in Contra Costa County at approximately the same time as the jury selected in Buford and by the same procedures as those criticized in that case. The Buford court, however, did not hold those procedures invalid per se. (Id. at p. 298, 182 Cal.Rptr. 904.) Instead, it found, first, there was evidence of underrepresentation of Blacks on the jury panel in that case, and second, there was evidence that unrepresentative panels had been common in the county at that time; the two elements established a prima facie case that Buford had been denied his right to a jury drawn from a fair cross-section of the community. (Id. at p. 299, 182 Cal.Rptr. 904.) Here, defendant has not attempted to prove the first element--that his panel was unrepresentative--but only that jury panels in general during this period were unrepresentative. This is not enough to establish a prima facie case of unfair underrepresentation.
Finally, defendant points out that a prima facie case of unfair underrepresentation was established in People v. Harris, supra, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, and In re Rhymes (1985) 170 Cal.App.3d 1100, 217 Cal.Rptr. 439, even though proof of an unrepresentative venire was required in neither. In both these cases, however, it was held that the jury pool did not represent a fair cross-section of the community because it had been composed solely of registered voters. When the jury pool is found to be unfair, it is unnecessary also to prove that the venires drawn from that pool are unfair. (People v. Wheeler (1978) 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748.) By contrast, the jury pool in the present case was not derived solely from registered voter lists, and defendant does not contest its fairness. Thus, defendant has failed to prove that either the jury pool or the venire or panel drawn from that pool was unrepresentative in his case, and his claim must therefore fail. 2. Prosecutorial Misconduct
a. Reading an Inadmissible Statement to the Jury. A secret informant told the police that he had seen defendant in possession of a small handgun on the day before the crime. The informant's statement was noted on page 13 of the police reports prepared in this case. At the preliminary hearing, the prosecutor stipulated that he would not produce the informant to testify as long as defense counsel did not request that he be identified.
Defendant contends the prosecutor violated the stipulation during his cross-examination of Dr. Shomer, defendant's expert witness on eyewitness identification. The prosecutor asked Dr. Shomer whether he had "read and considered the police reports" when forming his opinion. Dr. Shomer replied that he had. The prosecutor then made the following statement: "And I take it that you considered the report at Page 13, where the witness said that 'suspect had been observed in possession of a small-barreled gun and was cleaning the weapon the day before the crime.' " Defense counsel objected in the middle of the statement, but the prosecutor disregarded the objection and continued speaking. The court found it necessary to warn him, "Hold it. Whenever there is an objection I want other counsel to stop."
Defense counsel objected to the statement on the grounds that it constituted a violation of the stipulation, it was hearsay, and it was irrelevant and highly prejudicial. The court agreed that the prosecutor had violated the stipulation and instructed the jury to disregard the statement and not consider it for any purpose. Although the jury was so admonished, defendant contends the misconduct requires reversal. The Attorney General claims the statement was not misconduct because the prosecutor was merely questioning an expert witness about the basis for his opinion. (Evid.Code, § 721 [an expert witness "may be fully cross-examined as to ... the matter upon which his opinion is based"].) The Attorney General also denies that the prosecutor violated the stipulation.
Whether or not the statement violated the precise wording of the stipulation, the behavior was improper. "The deliberate asking of questions calling for inadmissible and prejudicial answers is misconduct." (People v. Fusaro (1971) 18 Cal.App.3d 877, 886, 96 Cal.Rptr. 368.) Similarly, to ask a question that itself reveals inadmissible and prejudicial information may also constitute misconduct. Here, after stipulating that the informant would not testify, the prosecutor in effect read the informant's statement in front of the jury by incorporating it into an otherwise unobjectionable question. If the prosecutor was merely trying to show that Dr. Shomer had not read all the police reports, as the Attorney General now claims, he could easily have done so without asking if he had considered the particular part of the reports that included the informant's statement. In fact, it was pointless to ask if Dr. Shomer had considered the informant's statement about possession of a gun on the day before the crime because any such knowledge would have had no bearing on his opinion regarding the reliability of the eyewitness testimony on the day of the crime. It thus appears the prosecutor engaged in a deliberate attempt to smuggle in an otherwise inadmissible and prejudicial statement. Such an act plainly constitutes misconduct. Further, the misconduct was exacerbated when the prosecutor continued to read the informant's statement over defense counsel's objection.
Prosecutorial misconduct is cause for reversal only when it is "reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant." (People v. Beivelman (1968) 70 Cal.2d 60, 75, 73 Cal.Rptr. 521, 447 P.2d 913.) Although the statement here may have caused the jury to believe that defendant was in possession of a gun on the day before the crime, it was not prejudicial on this record. The jury had already heard testimony that defendant had been given a gun five weeks earlier. Moreover, the court promptly admonished the jury to disregard the statement.
Defendant contends the proper test of prejudice is the reasonable doubt standard declared in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705. That standard applies, however, only when federal constitutional error is involved. Defendant claims the misconduct rises to the level of such error because the informant was not available for cross-examination as required by the confrontation clause of the Sixth Amendment. The point is untenable. The misconduct here was of an evidentiary nature, arising from the prosecutor's attempt to introduce inadmissible matter. As the jury was instructed to disregard the informant's statement there was no witness for defendant to "confront," and therefore no violation of his Sixth Amendment rights.
b. Attacking the Defense Counsel and Expert Witness for Not Having Read all the Police Reports. Dr. Shomer originally testified he had reviewed "the police reports." On cross-examination it became clear that he had read only the parts of the reports that defense counsel suggested were relevant to the eyewitness testimony. In his arguments to the jury the prosecutor tended to place defense counsel and Dr. Shomer in a negative light for the latter's failure to read the police reports in their entirety. Defendant claims the remarks were improper.
The prosecutor first made the following comments about Dr. Shomer: "His opinions aren't worth anything. He has no right to make those opinions because he wasn't at the scene and he didn't see [the eyewitnesses] testify, and he hasn't read all the police reports in the case, and he has no right to make those opinions. [p] However, if he has done some studying in the field, he has the ability to come to court and tell you some of the factors which he thinks are important; and they're common sense."
The prosecutor's assertion was technically misleading. The Evidence Code specifically allows the expression of expert opinion (§§ 801-805), and the court had approved of Dr. Shomer as an expert witness. Thus he did have the right to make and offer his opinions. On the whole, however, it is unlikely the comment would have been taken literally by the jury or had any effect on the verdict. Moreover, defendant did not object to the comment; even if the prosecutor erred by stating that Dr. Shomer had no right to an opinion, such an error could easily have been corrected by admonition. Any error is therefore waived. (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)
In his closing argument defense counsel criticized the police for not making a more thorough investigation of Larry Bell's role in this case. In response, the prosecutor made the following comments: "He goes on at length and asks you to suppose or imagine why the officers didn't spend more time investigating Larry. Did he ask Detective Tye, who was on the stand, what efforts were made to investigate Larry? No. Did he go into with Detective Tye the other 30 plus pages of his report concerning the Bell offense, which he didn't have his expert look at deliberately? Because if he did, I could go into it as part of his opinion, couldn't I? And I could bring out some things that maybe he didn't hear?" The prosecutor also said, "You don't know what was in the arrest and police reports, and you don't know whether efforts were made, because [defense counsel] didn't bring them out."
Defendant attacks these statements on a variety of grounds. First, he urges that the prosecutor should not have referred to the police reports because they were not in evidence. In light of defendant's attack on the adequacy of the investigation of Larry Bell, however, it was reasonable for the prosecutor to remind the jury that defendant had provided them with little actual information regarding that investigation. Although the reports were not in evidence, it was not error to mention them in pursuing this line of argument.
Defendant next complains the prosecutor unfairly insinuated that defense counsel had hidden evidence from the jury by instructing Dr. Shomer to read only certain parts of the reports. The Attorney General claims the prosecutor's remarks were merely intended to remind the jury that the expert had not read all the reports and thus was not qualified to render an opinion on whether the investigation was adequate. Although we find the Attorney General's explanation implausible, the remarks are probably not improper considering the wide discretion given counsel in closing argument. (See People v. Beivelman, supra, 70 Cal.2d 60, 76-77, 73 Cal.Rptr. 521, 447 P.2d 913.)
Finally, defendant argues that the prosecutor's comments regarding the unread parts of the reports may have refreshed the jurors' memories of the inadmissible police informant's statement that the prosecutor had disclosed to the jury while questioning Dr. Shomer on how much of the reports he had considered. When the prosecutor said that if defense counsel had questioned the detective about his entire report he (the prosecutor) "could bring out some things that maybe [defense counsel] didn't hear," the jury might have believed the prosecutor was again referring to the informant's statement. Although these comments were made in the context of discussing the adequacy of the investigation of Larry Bell, conceivably they may have misled the jury. Nonetheless, it is unlikely that a different verdict would have been reached had this line of reasoning not been pursued.
c. Discrediting the Expert Witness in a Misleading Manner. In People v. Guzman (1975) 47 Cal.App.3d 380, 121 Cal.Rptr. 69, the Court of Appeal upheld a ruling that excluded the testimony of Dr. Shomer. (Id. at pp. 385-386, 121 Cal.Rptr. 69.) The court stressed the wide discretion of trial courts in deciding whether to allow expert testimony, and held the exclusion of Dr. Shomer's testimony in that case was not an abuse of discretion. In its discussion, however, the court said: "How far should the courts go in allowing so-called scientific testimony, such as that of polygraph operators, hypnotists, 'truth drug' administrants, as well as purveyors of general psychological theories, to substitute for the common sense of the jury? Surely the answer is 'not in all cases, or even in the ordinary or usual cases.' " (Id. at p. 385, 121 Cal.Rptr. 69.) Although Dr. Shomer was not allowed to testify in Guzman, the Court of Appeal did not question his qualifications in any way nor hold that his testimony would have been inappropriate in that case. It merely held that the trial court did not abuse its discretion in deciding that expert testimony was not necessary on the facts of that particular case. (Id. at pp. 385-386, 121 Cal.Rptr. 69.)
The prosecutor sought to discredit Dr. Shomer by quoting from Guzman and informing the jury that the Guzman court had rejected Dr. Shomer's testimony. During cross-examination the prosecutor attempted to quote from Guzman, but defense counsel objected, stating: "There is no relevancy to this proceeding at all what an appellate court has said in another case." The prosecutor then stated he would rephrase his last question, and the court observed: "I hesitate to say that I should ignore appellate courts, but sometimes we do." The prosecutor again said he would rephrase his question, and after the court agreed to his doing so, he asked: "Dr. Shomer, do you agree that your testimony should be placed in the category of polygraph operators, hypnotists, truth drug administrators, and purveyors of general psychological theories?" Dr. Shomer answered, "Certainly not." The prosecutor then ended this line of questioning by commenting: "Well, there is some difference of opinion there." During closing argument, the prosecutor returned to this subject and again quoted from Guzman. He stated: "Okay, just a couple more comments on Shomer. I can't do any better than the appellate court did when they classified his testimony along with hypnotists, truth drug administrators, purveyors of psychological theories."
There can be no doubt that the prosecutor deliberately committed misconduct by repeatedly quoting the Guzman opinion out of context and in a misleading manner. The thrust of the prosecutor's comments was that a higher tribunal had held that Dr. Shomer's testimony was unreliable and should be classified with the testimony of polygraph operators, hypnotists, and truth drug administrators. In fact, however, the Guzman court had merely sustained a trial court's discretionary decision to exclude expert testimony on the facts of that particular case. 5 Thus, the prosecutor's comments were deceptive and may have confused the jury as to the meaning and relevance of the Guzman decision.
It is unlikely, however, that the comments had a measurable prejudicial effect. The jury was aware that Dr. Shomer had been allowed to testify in this case. The court had even commented that there were times when appellate courts should be ignored, which suggested to the jury that the Guzman decision was not controlling here. The jury was also informed that Dr. Shomer had been allowed to testify in many other courtrooms. Considering the record as a whole, the prosecutor's improper comments probably had little effect on the weight the jury chose to give to Dr. Shomer's testimony.
d. Other Instances of Prosecutorial Misconduct. Defendant contends the prosecutor committed misconduct four other times during his closing and rebuttal arguments. On each of these occasions, however, defense counsel failed to object. Thus he waived his right to object on appeal unless the error could not have been corrected by appropriate instructions. (People v. Green, supra, 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)
First, defendant points to the following statements by the prosecutor: "It's a very common thing to expect the defense to focus on areas which tend to confuse. That is--and that's all right, because that's [defense counsel's] job. If you're confused and you're sidetracked, then you won't be able to bring in a verdict." The prosecutor also commented: "It's his job to throw sand in your eyes, and he does a good job of it. But bear in mind at all times, and consider what [defense counsel has] said, that it's his job to get his man off. He wants to confuse you."
Counsel have broad discretion in discussing the legal and factual merits of a case (People v. Beivelman, supra, 70 Cal.2d at pp. 76-77, 73 Cal.Rptr. 521, 447 P.2d 913), but it is error to misstate the law (People v. Pike (1962) 58 Cal.2d 70, 97, 22 Cal.Rptr. 664, 372 P.2d 656) or to resort to personal attacks on the integrity of opposing counsel (People v. Perry (1972) 7 Cal.3d 756, 789-790, 103 Cal.Rptr. 161, 499 P.2d 129). However, the challenged comments do not constitute an improper attack on defense counsel. In fact, the prosecutor clearly stated that defense counsel's comments were all right and that he was just doing his job. It is less clear, however, whether the prosecutor was suggesting that defense counsel was legally obligated or entitled to present his client's case dishonestly. In People v. Perry, supra, we held there was misconduct when the thrust of the prosecutor's argument was that "defense counsel were not ethically obligated to present the facts and so were free to obscure the truth and confuse the jury." (Id. at p. 789, 103 Cal.Rptr. 161, 499 P.2d 129.) To the extent the prosecutor here was suggesting that defense counsel was entitled to mislead the jury, his argument was improper. (See Rules Prof. Conduct of State Bar, rule 7-105 [a member of the State Bar "shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law"].)
Although the comments appear to be improper, defendant did not object to them. Because erroneous discussion about the legal obligations of counsel can easily be corrected by admonition, defendant cannot complain for the first time on appeal. (People v. Green, supra, 27 Cal.3d at p. 34, 164 Cal.Rptr. 1, 609 P.2d 468.)
Defendant next urges that the prosecutor committed misconduct by suggesting that defense counsel doubted his client's innocence. During his rebuttal argument, the prosecutor made the following comment: "All right. The special circumstances. Let me talk briefly about that again. [Defense counsel] spent considerable time on that. And for a man who says that his client didn't commit the crime, that must be a waste of time. But, on the other hand, he might be worried that he did commit it."
In People v. Purvis (1963) 60 Cal.2d 323, 33 Cal.Rptr. 104, 384 P.2d 424, we held that the prosecutor committed misconduct by telling the jury that the defense counsel believed his client deserved the death penalty. When this comment was objected to at trial, the prosecutor explained that he was not making a factual statement of defense counsel's beliefs but instead was giving his analysis of the implications of the defense arguments. This court was unpersuaded by the prosecutor's reasoning, and concluded that his original comment was "just another example of a course of conduct which should not be condoned." (Id. at p. 343, 33 Cal.Rptr. 104, 384 P.2d 424.)
In the present case the Attorney General offers an explanation similar to that given by the prosecutor in Purvis. He asserts the prosecutor was merely pointing out the "internal disharmony" of the two defense theories, i.e., that the crime was not premeditated and that the case involved mistaken identity. This explanation is flawed on several grounds. First, regardless of who was responsible for the shootings, there is nothing inconsistent in a defense counsel pointing out that the type of shooting involved did not seem to be premeditated. Second, no matter how much faith a defense counsel has in his client's innocence, he would rarely be justified in failing to make any reasonable argument to negate the special circumstance allegation. Although the prosecutor may comment on apparent inconsistencies in counsel's arguments, the structure of the defense will seldom provide a legitimate basis for speculation as to counsel's personal beliefs about the defendant's guilt or innocence.
Again, however, any misconduct was harmless. The comments were brief and the prosecutor stated only that defense counsel "might" be worried that defendant committed the crimes. If an objection had been made, any adverse effect of these remarks could have easily been cured by admonition.
Defendant next complains of comments of the prosecutor regarding the effects of cocaine. There was testimony at trial that Larry Bell had been taking cocaine on the day of the murder. The primary defense theory was that Larry had committed the crimes and had been mistaken for defendant. Defense counsel commented during his closing argument that Larry's use of cocaine could have accounted for the senseless nature of the shootings. The prosecutor said in his rebuttal, "Those of you who have some medical knowledge know that cocaine is a downer, you get mellow on it. It's not like methedrine which stokes you up and causes you to do irrational acts. Cocaine is a downer. You don't go out and shoot people on cocaine. You make love; you're mellow."
Defendant contends the prosecutor's discussion of cocaine was improper, misleading, and factually incorrect. The Attorney General argues that the remarks were proper because they related to a matter of common knowledge, were made in response to defense counsel's own comments on the effects of cocaine, and were not substantially inaccurate.
Defendant is correct that the remarks were based on facts not in evidence. Although typical reactions to certain drugs may be a matter of common knowledge, the specific effects of cocaine and methedrine are not necessarily commonly known. Indeed, the prosecutor specifically addressed his remarks to those in the jury "who have some medical knowledge." And the fact that defense counsel also made comments about the effects of cocaine, even if improper, would not justify the prosecutor's response. (See People v. Perry, supra, 7 Cal.3d 756, 789, 103 Cal.Rptr. 161, 499 P.2d 129 ["the remarks of a defense counsel do not justify retaliation by the prosecution"].)
Because the comments were not based on the evidence, they were improper regardless of whether they were factually correct. It is worthwhile to note, however, that the authorities cited in the briefs of both defendant and the Attorney General generally conflict with the prosecutor's argument concerning the effects of cocaine. Thus, the jury may have been misinformed. Once again, however, defendant failed to object, and the impropriety could easily have been corrected at trial.
Finally, defendant claims the prosecutor erred by commenting on the failure of the defense to call Larry Bell as a witness. In their closing arguments both counsel remarked on Larry's absence from the courtroom. Defense counsel argued that the prosecution was afraid to have the jury see Larry because he looked so much like his brother; the prosecutor argued to the contrary--that defense counsel would have brought Larry into court if he had not feared the jury would see how dissimilar the brothers were in appearance.
It is well settled that a prosecutor may comment on the failure of the defense to produce a logical witness. (People v. Vargas (1973) 9 Cal.3d 470, 475, 108 Cal.Rptr. 15, 509 P.2d 959; People v. Szeto (1981) 29 Cal.3d 20, 34, 171 Cal.Rptr. 652, 623 P.2d 213.) Larry Bell would have been a logical witness for the defense to call because his appearance was a central element of the defense of mistaken identification. The prosecutor therefore did not commit error by commenting on Larry's absence from the courtroom. Moreover, the remark was not likely to cause any significant prejudice because the jury heard testimony concerning the appearance of the two men and there was also in evidence a family photograph showing both defendant and Larry Bell. 3. Fair Trial
When the record discloses a number of errors that were individually insubstantial, their cumulative effect may still require reversal. (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 359, p. 362.) Reversals have been ordered when it was reasonably probable that a different result would have been reached but for the errors (see, e.g., Delzell v. Day (1950) 36 Cal.2d 349, 351-352, 223 P.2d 625; Gackstetter v. Market Street Ry. Co. (1933) 130 Cal.App. 316, 327, 20 P.2d 93) or when a criminal defendant has been denied the fair trial guaranteed by the due process clauses of the federal and state Constitutions (see, e.g., People v. Kirkes (1952) 39 Cal.2d 719, 727, 249 P.2d 1; People v. Hudson (1981) 126 Cal.App.3d 733, 741, 179 Cal.Rptr. 95; People v. Rodgers (1979) 90 Cal.App.3d 368, 372, 153 Cal.Rptr. 382). Specifically, repeated instances of prosecutorial misconduct may be highly prejudicial. (See, e.g., People v. Kirkes, supra, 39 Cal.2d at p. 726, 249 P.2d 1 [improper remarks by the prosecutor "were interspersed throughout the closing argument in such manner that their cumulative effect was devastating"]; People v. Hudson, supra, 126 Cal.App.3d at p. 741, 179 Cal.Rptr. 95 ["It is conceivable that any one of the described tactics of the prosecutor, although error, might be accidental and harmless. When all of them are combined, there is no doubt that appellant was deprived of his right to a fair trial ..."]; People v. Rodgers, supra, 90 Cal.App.3d at pp. 371-372, 153 Cal.Rptr. 382 [prosecutorial misconduct was pervasive and denied defendant a fair trial].)
Defendant contends his conviction should be reversed because the prosecutor's many acts of misconduct deprived him of a fair trial. We do not condone the conduct of the prosecutor. The words of Justice Sutherland are worth repeating here: "while he may strike hard blows, he is not at liberty to strike foul ones." (Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.) Nevertheless, on this record reversal is not justified. Even when such misconduct has occurred throughout the trial, it will not be grounds for reversal unless it is shown to be prejudicial or to have denied the defendant a fair trial. Here, the prosecution's case was based on the testimony of three eyewitnesses. Each witness insisted that her identification of defendant was correct. While the testimony of the two teenagers was somewhat questionable, the testimony of Ernestine Jackson was quite convincing. Moreover, defendant failed to introduce any evidence of an alibi that would discredit the testimony of the eyewitnesses. He even failed to call his brother as a witness although his defense was based in large part on the alleged similarity in appearance between his brother and himself. After examination of each of the errors and of the cumulative impact of those errors in the context of this case, we conclude that it is not reasonably probable the errors contributed to the verdict, and that defendant was not denied a fair trial. 4. Judicial Misconduct
Defendant also contends he was denied a fair trial because the judge failed to intervene sua sponte to curb the misconduct of the prosecutor during closing arguments. While it is the duty of the judge to "control all proceedings during the trial, and to limit ... the argument of counsel to relevant and material matters" (§ 1044), we cannot expect the judge to correct each instance of misconduct on his own motion. As noted above, counsel are allowed considerable discretion in presenting and arguing their case, just as opposing counsel are permitted to determine in the first instance whether and when to object to any perceived abuse of that discretion. In this setting the role of the judge is somewhat restricted, although he must be more than a bystander or umpire; he has a duty to assure a fair trial. However, because we have determined that the cumulative effect of the prosecutor's errors in this case was not prejudicial, we shall not reverse because of the failure of the judge to have prevented or corrected those same errors sua sponte. 5. Conviction of Violation of Section 12021.
Defendant was charged with violating section 12021, which prohibits any person who has been convicted of a felony from owning or possessing a concealable firearm. It was alleged that on the day defendant committed the principal crimes in this case he was in possession of a pistol, and that he had previously been convicted of the felonies of manslaughter and theft. At trial the prosecution produced documentary proof that 10 years earlier defendant had been convicted of manslaughter and committed to the Youth Authority. 6 Defendant put on no defense to the charge of violating section 12021 and was duly convicted of it, but sentence thereon was permanently stayed. In his brief on appeal defendant contended for the first time that as a matter of law he could not be convicted under section 12021 because he had been honorably discharged from the Youth Authority on the manslaughter commitment in 1972. After investigation the Attorney General stipulated that defendant had indeed been honorably discharged from his Youth Authority commitment, and that this court may take judicial notice of the fact.
Defendant relies on Welfare and Institutions Code section 1772, subdivision (a), which provides in relevant part that every person honorably discharged by the Youth Authority "shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed ... including, but not limited to any disqualification for any employment or occupational license, or both, created by any other provision of law."
Whether the prohibition of section 12021 against carrying a concealable firearm is a "penalty" or "disability" within the meaning of section 1772 is a question of first impression. There appear to be only two reported cases in which the latter terms have been construed. In People v. Navarro (1972) 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481, the trial court ruled the defendant ineligible for the narcotic addicts rehabilitation program (Welf. & Inst.Code, § 3000 et seq.) because he had previously been convicted of assault with a deadly weapon and committed to the Youth Authority; Welfare and Institutions Code section 3052 (hereafter section 3052) barred from the addict rehabilitation program persons convicted, inter alia, of assault with a deadly weapon. This court held defendant eligible for the program because assault with a deadly weapon is punishable either as a felony or as a misdemeanor, and commitment to the Youth Authority for such an offense ipso facto reduces it to a misdemeanor for all purposes, thus avoiding the bar of section 3052. (People v. Navarro, supra, at pp. 266-271, 102 Cal.Rptr. 137, 497 P.2d 481.)
Although that holding was dispositive of the appeal, we addressed the defendant's alternate contention that his honorable discharge from the Youth Authority also relieved him of the bar of section 3052. We proceeded by analyzing the policies underlying the two statutes. The Youth Authority Act, we reasoned, was intended to protect the public by subjecting youthful offenders to rehabilitation rather than retributive punishment; such rehabilitation is achieved by a variety of programs, including education, vocational training, work furloughs, supervised parole, and ultimately honorable discharge and expungement of criminal record. Similarly, the purpose of the narcotic addict commitment program is to protect the public by substituting the rehabilitation of addicts for their punishment, and the goal is also achieved by such methods as training, supervised parole, and discharge with expungement. We concluded that in the case of the youthful narcotic addict, commitment to the addict rehabilitation program would promote the purposes of the Youth Authority law, and hence that the bar to such commitment presented by section 3052 should be deemed one of the penalties and disabilities released by honorable discharge from the Youth Authority. (People v. Navarro, supra, at pp. 280-281, 102 Cal.Rptr. 137, 497 P.2d 481.)
The second case to construe Welfare and Institutions Code section 1772 was People v. Jackson (1986) 177 Cal.App.3d 708, 222 Cal.Rptr. 470. There the defendant was impeached by two prior felony convictions for which he had been committed to the Youth Authority and honorably discharged. Again the court looked to the policies involved, reasoning that the rehabilitative purposes of the Youth Authority Act would to some extent be frustrated if a youthful offender were dissuaded from testifying in his own behalf because of the lingering taint of an offense for which he had been honorably discharged from the Youth Authority. (Id. at pp. 711-712, 222 Cal.Rptr. 470.)
We undertake a similar analysis here. "Penal Code, section 12021, is part of the legislative scheme originally promulgated in 1917 (Stats.1917, ch. 145, p. 221, § 1.) and commonly known as the Dangerous Weapons Control Act.... The clear intent of the Legislature in adopting the weapons control act was to limit as far as possible the use of instruments commonly associated with criminal activity [citation] and, specifically, 'to minimize the danger to public safety arising from the free access to firearms that can be used for crimes of violence.' (People v. Scott, 24 Cal.2d 774, 782 .)" (People v. Washington (1965) 237 Cal.App.2d 59, 66, 46 Cal.Rptr. 545.) The law presumes the danger is greater when the person possessing the concealable firearm has previously been convicted of felony, and the presumption is not impermissible. (People v. Dubose (1974) 42 Cal.App.3d 847, 849-850, 117 Cal.Rptr. 235.) It is evident that "the almost frivolous 'burden' suffered by a convicted felon denied the 'right' to carry a concealable weapon" (id. at p. 850, 117 Cal.Rptr. 235) pales in comparison with the true disability suffered, for example, by the narcotic addict in Navarro, supra, 7 Cal.3d 248, 102 Cal.Rptr. 137, 497 P.2d 481, who was denied the opportunity for treatment in the addict rehabilitation program. More important, while that treatment is consistent with and supportive of the remedial purposes of the Youth Authority law, the same could not be said of a decision to permit youthful ex-felons to carry concealed firearms. We conclude that the prohibition of section 12021 is not one of the penalties or disabilities released by honorable discharge from the Youth Authority, and hence that defendant's conviction of violating that statute is valid.
We find support for our conclusion in the legislation governing the pardon of adult ex-felons. (§ 4852.01 et seq.) After release from prison, successful completion of parole, and a lengthy additional period of rehabilitation in this state during which the ex-felon must "live an honest and upright life," "conduct himself with sobriety and industry," and "exhibit a good moral character" (§ 4852.05), he may petition the superior court for a certificate of rehabilitation (§ 4852.07). If, after investigation by law enforcement authorities and a thorough hearing into the matter, the court finds that the petitioner has demonstrated "his rehabilitation and his fitness to exercise all of the civil and political rights of citizenship," it will issue a certificate of rehabilitation recommending that the Governor grant a full pardon. (§ 4852.13.) But even though such a pardon entitles the ex-felon thereafter to exercise all civil and political rights and privileges, specifically including the right to own or possess any lawful firearm (§ 4852.17), the legislation expressly declares that "this right shall not be restored, and Sections 12001 and 12021 of the Penal Code shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon." (Ibid.; see also § 4852 [pardon of prison inmates].)
In short, the Legislature has determined that any adult convicted of a dangerous-weapon felony should be forever subject to the bar of section 12021, regardless of how complete his rehabilitation. Even the Governor, vested with the pardoning power by the Constitution (art. V, § 8), cannot restore such person's privilege to carry a concealable firearm. The implications for the case at bar are clear: because the prerequisites for an honorable discharge from the Youth Authority--i.e., "a good record on parole" (Welf. & Inst. Code, § 1772)--are much less stringent than the requirements for obtaining a full gubernatorial pardon, we cannot believe the Legislature intends such a discharge to grant a benefit that it expressly denies to a pardon.
We are aware that the same reasoning was rejected in a different but related context in People v. Taylor (1960) 178 Cal.App.2d 472, 479-480, 3 Cal.Rptr. 186. That case dealt with section 1203.4, which provides that an adult defendant who successfully fulfills the conditions of his probation may petition the superior court for dismissal of the charge of which he was convicted, and that the dismissal will release him from "all penalties and disabilities" resulting from the conviction. In Taylor the Court of Appeal held that the penalties and disabilities released by section 1203.4 included the bar of section 12021 against carrying a concealable firearm. We are not persuaded by the court's attempt to distinguish the above-discussed statutes limiting the pardoning power, but we need not formally disapprove it: in the very next session after Taylor was decided, the Legislature settled the matter by amending section 1203.4 to specifically declare that dismissal of a charge after completion of probation does not permit the person to own or possess a concealable firearm, or prevent his conviction under section 12021. 7 6. Ineffective Assistance of Counsel
Defendant contends he was denied the effective assistance of counsel during the guilt phase because his counsel failed to object to several instances of prosecutorial misconduct.
To make a successful claim of ineffective assistance of counsel, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233 Cal.Rptr. 404, 729 P.2d 839.) Defendant, however, does not carry his burden of proving that trial counsel's failure to object to the prosecutor's misconduct amounted to deficient performance. As we explained in People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859: "In some cases ... the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal." This is such a case: the appellate record sheds no light on why trial counsel acted as he did; he was not asked to explain his performance; although we may doubt that a satisfactory explanation could be provided, we are unable to conclude that it could not. Thus, we must reject defendant's point. 8
We have determined above that the prosecutor committed several acts of misconduct to which defense counsel failed to object. The record, however, does not reveal whether the omissions were part of a legitimate trial strategy or were, as defendant implies, inexcusable oversights. Under Pope we must therefore reject defendant's contention. (Id. at pp. 425-426, 152 Cal.Rptr. 732, 590 P.2d 859.) III. PENALTY PHASE ISSUES 1. Prosecutorial Misconduct
a. Application of People v. Green in the Penalty Phase. Defendant assigns as prejudicial misconduct various remarks by the prosecutor during penalty phase arguments. He failed to object to any of these remarks, however, and hence under People v. Green, supra, 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468, is deemed to have waived the right to complain of them on appeal unless the harm they caused could not have been corrected by appropriate instructions.
Defendant seeks to circumvent Green by claiming that it does not apply in the penalty phase of a capital trial. He cites no authority in support, but simply makes the following argument: first, the acts of misconduct in Green all occurred during the guilt phase, and second, the purpose of applying the rule of Green to guilt phase errors would not be served by applying it to penalty phase errors.
The argument is unpersuasive. In Green we explained our reason for requiring timely objections at trial to alleged acts of misconduct: " '[T]he trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.' [Citations.]" (Id. at p. 27, 164 Cal.Rptr. 1, 609 P.2d 468.) Defendant fails to explain why this reasoning does not apply equally in both the guilt and penalty phases. Moreover, there is nothing in the language of Green that suggests we intended to limit our holding in the manner defendant urges; rather, Green applies in any phase of the trial.
Defendant next argues that instances of "substantial misconduct" by the prosecutor during the penalty phase "automatically fall within the exception to the Green rule because no court can state with any assurance that appropriate instructions or admonitions would have cured the harm resulting from the misconduct." Although defendant is correct in pointing out the inherent difficulty in deciding whether misconduct in the penalty phase could have been cured at trial, we need not adopt the inflexible rule he proposes. The fact that an error is "substantial" does not establish that its harmful effects could not have been cured in timely fashion. For example, a prosecutor may commit substantial error by misstating the law to the jury, but the harm may easily be corrected by the court. What it does mean is that a reviewing court must exercise caution in determining whether the effects of misconduct were curable by instruction or admonition.
b. Lack of Remorse. In his argument to the jury the prosecutor made such comments as, "I might add that nowhere during the course of this case has there been one scintilla of evidence of remorse for the events in question, neither in the guilt phase or penalty phase. Nothing." Defendant did not object to these remarks.
He first contends the comments constitute error under Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and People v. Coleman (1969) 71 Cal.2d 1159, 80 Cal.Rptr. 920, 459 P.2d 248. Griffin holds that the prosecution may not comment on a defendant's failure to testify on his own behalf. Similarly, under Coleman the prosecution may not suggest that "a defendant's failure to confess his guilt after he has been found guilty demonstrates his lack of remorse and that therefore such failure should be considered as a ground for imposing the death penalty." (Id. at p. 1168, 80 Cal.Rptr. 920, 459 P.2d 248.) Here, however, the prosecutor's remarks did not amount to a comment on defendant's failure to testify or his failure to confess. Rather, they merely constituted a statement to the effect that remorse--a nonstatutory factor in mitigation (People v. Ghent (1987) 43 Cal.3d 739, 771, 239 Cal.Rptr. 82, 739 P.2d 1250)--was absent. Such remarks, we have held, are not improper. (Ibid.)
c. Predictions of Future Violence. In his closing argument the prosecutor suggested to the jury that to sentence defendant to life imprisonment without possibility of parole would not effectively remove him from "society." Instead, he said, defendant would be placed in a "narrower" society, but one in which there would be other human beings--such as guards, clerics, and fellow prisoners--whom defendant might harm in the future. The prosecutor then asked the jury to consider defendant's potential for committing future violent acts before determining his penalty. Again, defendant assigns error to these remarks for the first time on appeal.
Defendant relies primarily on People v. Murtishaw (1981) 29 Cal.3d 733, 175 Cal.Rptr. 738, 631 P.2d 446. In Murtishaw, we held that expert forecasts of future violence were of limited probative value and were highly prejudicial. We stated: "One can imagine few matters more prejudicial at the penalty trial than testimony from an established and credentialed expert that defendant, if sentenced to life without possibility of parole, would be likely to kill again." (Id. at p. 773, 175 Cal.Rptr. 738, 631 P.2d 446.) Defendant argues that comments on future dangerousness by the prosecutor, like testimony by an expert witness, should not be allowed.
His reliance on Murtishaw is misplaced. First, Murtishaw did not disallow all expert testimony predicting future violence on the part of the defendant. Instead, we acknowledged that "it may be possible for a party in a particular case to show that a reliable prediction is possible." (Id. at p. 774, 175 Cal.Rptr. 738, 631 P.2d 446.) Second, Murtishaw dealt with the testimony of "an established and credentialed expert," and such testimony is far more prejudicial than comments of the prosecutor, who can claim neither to be a neutral party nor an expert in predicting human behavior. Finally, the prosecutor here did not actually predict that defendant would commit future acts of violence, but merely asked the jury to consider his potential for committing such acts in making the penalty decision.
Defendant also relies on People v. Love (1961) 56 Cal.2d 720, 731, 16 Cal.Rptr. 777, 366 P.2d 33, in which the court held it was misconduct for the prosecutor to claim that capital punishment has a stronger deterrent effect on crime than imprisonment. Love, however, dealt with comments about the general deterrent effect of capital punishment, which is clearly an improper basis on which to impose the death penalty on a particular individual. Here, the prosecutor's comments related only to the obvious fact that the death penalty would prevent the defendant in this particular case from committing future acts of violence. Comments of this type are not in violation of Love. (People v. Varnum (1969) 70 Cal.2d 480, 487-488, 75 Cal.Rptr. 161, 450 P.2d 553, see also People v. Talbot (1966) 64 Cal.2d 691, 712, 51 Cal.Rptr. 417, 414 P.2d 633.)
In People v. Davenport (1985) 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861, the defendant also claimed that the prosecutor's comments regarding future violence were in violation of Murtishaw. We rejected the claim and noted that "Indeed, a state statute requiring the jury to determine the probability of future criminal conduct at the penalty phase has withstood constitutional scrutiny." (Id. at p. 288, 221 Cal.Rptr. 794, 710 P.2d 861, citing Jurek v. Texas (1976) 428 U.S. 262, 275, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929.) As in Davenport, the prosecutor's comments on future violence in this case were not improper. 9 2. Instructions Regarding Defendant's Mental Condition.
Dr. Drake, a neurologist, testified on defendant's behalf at the penalty phase. He reported defendant had a cerebral disorder that impaired his ability to think abstractly and to foresee the consequences of his acts. He also testified that defendant had a damaged blood vessel above his ear that produced a constant and disturbing noise. It was the witness's expert opinion that defendant's neurological problems may have resulted from two childhood head injuries and that these problems were likely to be permanent.
The court instructed the jury that in determining the penalty it should consider, if relevant, "[w]hether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or the effects of intoxication." (Italics added.) (Former § 190.3, subd. (g).) Defendant contends that his condition is a "mental defect" rather than a "mental disease," and that by failing to instruct the jury that it could consider evidence of "mental defect" as well as "mental disease" the court withdrew from its consideration the mitigating evidence of Dr. Drake.
The point is unconvincing. Although such an instruction should be given when warranted by the evidence and requested by a party (see People v. Robertson (1982) 33 Cal.3d 21, 60, 188 Cal.Rptr. 77, 655 P.2d 279 [plur. opn.] ), no prejudicial error appears on the record of this case. To begin with, the instruction given here was entirely correct insofar as it allowed the jury to consider the effect of "mental disease" on defendant's mental capacity. It was taken directly from the language of the 1977 law, and there is no claim that its reference to "mental disease" was improper or misleading. If defendant believed that the instruction was incomplete or needed elaboration, it was his responsibility to request an additional or clarifying instruction. (E.g., People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal.Rptr. 238, 414 P.2d 366.) No such request was made.
More important, it is clear from the record that the instruction given did not in fact withdraw Dr. Drake's testimony from the jury's consideration. First, Dr. Drake himself never referred to defendant's condition as a "mental defect," but testified in more specific terms that defendant's head injuries may have caused a certain "pathology" in his brain resulting in various physical and behavioral "abnormalities." Second, the prosecutor never argued that defendant's mental condition should be disregarded because it is a "defect" rather than a "disease." On the contrary, he stated the issue as being whether defendant had "organic brain damage" that "would make it impossible for him to act as a normal human being." He then challenged Dr. Drake's testimony not as irrelevant but as insufficient, seeking to undermine it on such common grounds as lack of foundation and inconsistency. In turn, defense counsel relied heavily on Dr. Drake's testimony in arguing for mercy because of "the organic brain damage that has seriously affected Ronnie's judgment." Finally, the jury was also instructed that in fixing the penalty it should weigh all the evidence introduced in the trial, and in particular should consider whether defendant acted while "under the influence of extreme mental or emotional disturbance" and any other circumstance that "extenuates the gravity of the crime." It is inconceivable that any reasonable juror, having heard such testimony, argument, and instructions, could have believed that he was somehow barred from considering defendant's mental condition, as described by Dr. Drake, in deciding the issue of penalty. 3. Reference to Mitigating Factors Not Shown by the Evidence.
Former CALJIC No. 8.88.1 enumerates 10 factors in aggravation and mitigation to be considered by the jury "if applicable" in making the penalty decision. Defendant contends the court erred by reading this list of factors in its entirety, instead of deleting four mitigating factors that were not shown by the evidence in this case.
The contention is unpersuasive. First, the instruction clearly states that the jury is to consider only such factors as are applicable to the case. Second, each mitigating factor is relevant to the jury's consideration in the sense that the Legislature has identified it as a proper subject of consideration in the selection of an appropriate penalty. Thus, by hearing in its entirety the list of mitigating factors the jury receives not merely a collection of circumstances that may or may not be applicable to the case, but is also helped to recognize and evaluate other mitigating factors relevant to the sentencing decision.
Defendant complains, however, that the reading of the entire list of factors allowed the prosecutor to discuss each factor that was not applicable to this case and to present the absence of such mitigating factor as an aggravating factor. Although we held that such an argument would be improper in People v. Davenport (1986) 41 Cal.3d 247, 288-290, 221 Cal.Rptr. 794, 710 P.2d 861, the prosecutor did not make that contention in the case at bar. Instead, he merely reviewed the mitigating factors on the list and attempted to show that each was either lacking or unimportant. He never expressly characterized the absence of a mitigating factor as a factor in aggravation, and it is unlikely the jury would have interpreted his brief comments about the inapplicable mitigating factors in that manner. Thus, there was no error in the reading of former CALJIC No. 8.88.1 or in the prosecutor's comments on the mitigating factors included in that instruction. 4. The Court's Response to a Jury Inquiry.
After less than two hours of deliberation the jury presented the court with a note asking (1) whether the penalty verdict must be unanimous and (2) whether, "if we disagree on the death penalty, do we automatically go to life imprisonment?" The court replied by instructing the jury that (1) either verdict--death or life imprisonment without possibility of parole--must be unanimous, and (2) if the jurors are unable to reach a unanimous verdict, they must so inform the court. The foreman asked, "What happens then?" and the court answered, "That would not be of any concern to the jury. That would be of concern to the court." The court went on to explain that "If the jury is unable to reach a verdict and you have exhausted the opportunities of discussion and you feel that further discussion would no longer be beneficial to the jury, and that you have been unable to reach a verdict, then let me know that." On ascertaining that the jury wished to continue deliberating, the court allowed it to do so. The next day the jury returned a verdict of death.
The legislation in effect at the time of this trial (former § 190.4, subd. (b)) provided that if a jury was unable to agree on penalty the court would impose a sentence of life without parole. 10 Defendant contends the court should have told the jury of this statutory provision, and that its failure to do so created a risk of arbitrary decision-making by injecting "extraneous and irrelevant considerations" into the deliberations. But the "considerations" defendant has in mind are pure conjecture: he speculates that the jurors might have believed that if they could not reach a verdict, either the penalty phase (or perhaps the entire case) would have to be retried, or the court would impose a sentence of life with possibility of parole.
The point is unconvincing. The instruction given--that a penalty verdict must be unanimous--correctly stated the law, and defendant did not complain when the court refused to educate the jury on the legal consequences of a possible deadlock. Moreover, that refusal was not error. Defendant cites no California precedent in support of his claim; on the contrary, what authority there is points plainly in the other direction.
In People v. Dixon (1979) 24 Cal.3d 43, 154 Cal.Rptr. 236, 592 P.2d 752, the defendant was tried for murder. During deliberations the jury asked the court whether, if it agreed the crime was murder but could not agree it was first degree, any verdict of second degree would have to be unanimous. The court answered yes, and the jury ultimately returned a first degree verdict. On appeal the defendant contended that the court (1) misstated the law and (2) should have told the jury that a failure to agree on a first degree verdict would automatically result in a second degree finding. We rejected the first contention, holding that in these circumstances a second degree verdict must be unanimous. And in dismissing the second contention we observed, inter alia, that "it contemplates an instruction which would constitute an open invitation to a juror favoring the lesser degree to have his way by simply adhering to his opinion in spite of any arguments which might be raised by his fellow jurors against it." (Id. at p. 53, 154 Cal.Rptr. 236, 592 P.2d 752.)
By parity of reasoning, if the court in the case at bar had instructed under the law then in effect that a failure of the jury to agree on the penalty of death would automatically result in a sentence of life without parole, any juror inclined to the latter penalty would have realized he could prevail simply by refusing to participate in the deliberations in good faith: by remaining obdurate and causing a jury deadlock, he would have in effect a veto power over the verdict. The likelihood of a minority juror's drawing this obvious inference far outweighs defendant's speculations as to what a jury uninformed on the point might have believed. The instruction now urged by defendant would thus have confused the jury's role in the penalty-determination process, and the court did not err in declining to give it. 5. Burden of Proof
Defendant contends the due process and cruel and/or unusual punishment clauses of the federal and state Constitutions require that a capital jury be instructed that it must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors and death is the appropriate penalty. We have rejected this contention under both the 1977 death penalty legislation (People v. Frierson (1979) 25 Cal.3d 142, 180, 158 Cal.Rptr. 281, 599 P.2d 587) and the 1978 initiative (People v. Allen (1986) 42 Cal.3d 1222, 1285, 232 Cal.Rptr. 849, 729 P.2d 115). 6. Proportionality Review
Defendant contends his death sentence is disproportionate to his individual culpability within the meaning of People v. Dillon (1983) 34 Cal.3d 441, 477-482, 194 Cal.Rptr. 390, 668 P.2d 697, and In re Lynch (1972) 8 Cal.3d 410, 423-429, 105 Cal.Rptr. 217, 503 P.2d 921. But he offers no persuasive analysis of the facts to support this claim, and our reading of the record refutes it.
He next argues that the 1977 death penalty legislation violated the cruel and/or unusual punishment clause because it did not provide for "intercase" proportionality review. The claim has been rejected both by the United States Supreme Court (Pulley v. Harris (1984) 465 U.S. 37, 51-53, 104 S.Ct. 871, 879-880, 79 L.Ed.2d 29) and by this court (People v. Frierson, supra, 25 Cal.3d 142, 180-184, 158 Cal.Rptr. 281, 599 P.2d 587; People v. Jackson (1980) 28 Cal.3d 264, 317, 168 Cal.Rptr. 603, 618 P.2d 149), and it also lacks merit under the 1978 initiative (People v. Allen, supra, 42 Cal.3d at p. 1285, 232 Cal.Rptr. 849, 729 P.2d 115).
Finally defendant urges that the 1977 legislation violated the equal protection clause because it denied to capital defendants the comparative sentence review that is granted to noncapital defendants by section 1170, subdivision (f). We rejected an identical claim as to the 1978 initiative in People v. Allen, supra, 42 Cal.3d at pages 1286-1288, 232 Cal.Rptr. 849, 729 P.2d 115, and our reasons are equally applicable to the 1977 legislation.
The judgment is affirmed.
LUCAS, C.J., and PANELLI, EAGLESON and KAUFMAN, JJ., concur.
BROUSSARD, Justice, concurring and dissenting.
I concur in the judgment insofar as it affirms the convictions of murder and attempted murder and the finding of the special circumstance. I dissent from the affirmance of the conviction for possession of a concealable firearm by an ex-felon under Penal Code section 12021 and of the death penalty. PENAL CODE SECTION 12021
Defendant's status as an ex-felon subject to the prohibition of possession of a concealable firearm under section 12021 was based on his conviction 10 years earlier of manslaughter for which he was committed to the Youth Authority. It is stipulated that defendant was honorably discharged from the Youth Authority on the manslaughter commitment in 1972.
Under the provisions of Welfare and Institutions Code section 1772, subdivision (a), the honorable discharge released defendant from the prohibition of Penal Code section 12021. Section 1772, subdivision (a) provides: "Every person honorably discharged from control by the Youthful Offender Parole Board ... shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed...." (Italics added.) 1
When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it. (E.g., People v. Overstreet (1986) 42 Cal.3d 891, 895, 901, 231 Cal.Rptr. 213, 726 P.2d 1288; People v. Weidert (1985) 39 Cal.3d 836, 843, 218 Cal.Rptr. 57, 705 P.2d 380; In re Atiles (1983) 33 Cal.3d 805, 811, 191 Cal.Rptr. 452, 662 P.2d 910.) The prohibition of possession of a concealable firearm under Penal Code section 12021 arises directly from conviction of a felony, and it is unconditional. It is not an enhancement for which an increased penalty is imposed upon conviction of a subsequent offense, but rather the prohibition applies whether or not the ex-felon ever commits another offense, and the penalty is imposed whether or not the ex-felon is ever found guilty of another offense.
Welfare and Institutions Code section 1772, subdivision (a) specifies "all penalties and disabilities." The majority points to no definition of the quoted term which would exclude the prohibition of Penal Code section 12021. The Attorney General has not pointed to such a definition, and I am unaware of any. The term "all penalties and disabilities" used in other statutes without express exception has been held to include the prohibition of Penal Code section 12021. (People v. Taylor (1960) 178 Cal.App.2d 472, 475, 3 Cal.Rptr. 186 et seq.; see People v. Banks (1959) 53 Cal.2d 370, 388, 1 Cal.Rptr. 669, 348 P.2d 102.) And the Attorney General in 1958 agreed that the release from "all penalties and disabilities" in Welfare and Institutions Code section 1772 released the defendant from the prohibition of Penal Code section 12021. (32 Ops.Cal.Atty.Gen. 43, 44.)
While there may be ambiguity as to the application of Welfare and Institutions Code section 1772 as to other matters claimed to be penalties and disabilities resulting from the offense committed, there is no ambiguity as to the section's applicability in the instant case. Section 1772 clearly and unambiguously releases the youthful offender who is honorably discharged from the prohibition of Penal Code section 12021. Indeed the majority's language betrays their argument. The majority conclude that the prohibition of section 12021 "is not one of the penalties or disabilities released by honorable discharge from the Youth Authority." (Ante, p. 904 of 241 Cal.Rptr., p. 587 of 745 P.2d.) But Welfare and Institutions Code section 1772 specifies "all" penalties and disabilities. The majority read "all" to mean "some," an error in English usage which I cannot embrace.
Moreover, even if we were to assume that section 1772 was ambiguous, we would be compelled to conclude on the basis of settled rules of construction that the section releases the honorably discharged youthful offender from the prohibition of Penal Code section 12021.
(1) When language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstances of its application reasonably permit. The defendant is entitled to every reasonable doubt as to the true interpretation of words or the construction of a statute. (People v. Weidert, supra, 39 Cal.3d 836, 848, 218 Cal.Rptr. 57, 705 P.2d 380; People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186; In re Zerbe (1964) 60 Cal.2d 666, 668, 36 Cal.Rptr. 286, 388 P.2d 182.) As pointed out above, this court has read the release of all penalties and disabilities as including the release from the prohibition of Penal Code section 12021 (People v. Banks, supra, 53 Cal.2d 370, 388, 1 Cal.Rptr. 669, 348 P.2d 102), and the Court of Appeal (People v. Taylor, supra, 178 Cal.App.2d 472, 475, 3 Cal.Rptr. 186) and the Attorney General (32 Ops.Cal.Atty.Gen. 43, 44 (1958) have reached the same result. Those opinions establish the reasonableness of construing the release of Welfare and Institutions Code section 1772 to extend to the prohibition of Penal Code section 12021. One of the main purposes of the rule of strict construction is that it prevents judicial construction from changing the legal consequences of acts completed prior to the decision and thus helps to assure that a defendant has fair warning of the consequences of his acts reflected in the constitutional prohibition against ex post facto laws. (People v. Weidert, supra, 39 Cal.3d 836, 848-851, 218 Cal.Rptr. 57, 705 P.2d 380; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631-634, 87 Cal.Rptr. 481, 470 P.2d 617.) The principle takes on overwhelming force when the Attorney General, and by implication this court and the Court of Appeal, are advising the honorably discharged juvenile offender that he may lawfully possess concealable weapons.
(2) It is well established that a specific provision should be construed with reference to the entire statutory system of which it is a part in such a way that the various elements of the overall scheme are harmonized. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081.) Under this principle, the provisions of subdivision (b) of Welfare and Institutions Code section 1772 must be considered in construing the provisions of subdivision (a) of the section. Subdivision (b) permits honorably discharged youthful offenders to be employed and appointed as peace officers by the Department of the Youth Authority. Such officers occasionally are required to carry firearms, and we should not construe subdivision (a) to nullify the effect of subdivision (b). (See State of South Dakota v. Brown (1978) 20 Cal.3d 765, 774-776, 144 Cal.Rptr. 758, 576 P.2d 473.)
(3) Similarly, in related statutes the Legislature has reflected its understanding that the term "all penalties and disabilities" includes a release from the prohibition of Penal Code section 12021 in the absence of express provision to the contrary. Thus Penal Code section 1203.4 providing for a release from "all penalties or disabilities" for successful probationers expressly provides that they shall remain subject to the prohibition of section 12021. Penal Code section 4852.17 providing for a pardon for rehabilitated prisoners which restores civil rights expressly provides that they remain subject to the section 12021 prohibition if they were convicted of a felony involving the use of a dangerous weapon. Thus, the Legislature has qualified the release by express terms when it has seen fit to do so. In the absence of an express provision that the release from "all penalties and disabilities" does not include a release from the prohibition of section 12021, the court should not establish one.
(4) When the Legislature amends a statute without changing language which has been judicially construed, it is presumed that the Legislature intended to adopt the prior judicial construction. (State of South Dakota v. Brown, supra, 20 Cal.3d 765, 774-775, 144 Cal.Rptr. 758, 576 P.2d 473; People v. Curtis (1969) 70 Cal.2d 347, 355, 74 Cal.Rptr. 713, 450 P.2d 33.) The Legislature has amended Welfare and Institutions Code section 1772 on several occasions since the decisions of this court and the Court of Appeal and the Attorney General's opinion construing the term "all penalties and disabilities."
The majority rely upon two cases. In People v. Navarro (1972) 7 Cal.3d 248, 278-281, 102 Cal.Rptr. 137, 497 P.2d 481, the defendant was convicted of two counts of selling and offering to sell heroin with a prior conviction for assault with a deadly weapon as a juvenile for which he had received an honorable discharge. He sought commitment for treatment for narcotic addiction, but the statutes made ineligible persons previously convicted of assault with a deadly weapon. The court held that the penalties and disabilities released under Welfare and Institutions Code section 1772 included the exclusionary provision of the treatment statute, making Navarro eligible for the treatment program. In the second case, People v. Jackson (1986) 177 Cal.App.3d 708, 711-712, 222 Cal.Rptr. 470, the issue was whether an honorably discharged juvenile offender could be impeached by the juvenile offenses, and the court held that the release from all penalties and disabilities precluded impeachment.
Neither case provides substantial support for the majority. First, in both cases the term "all penalties and disabilities" was ambiguous as to the matter in issue Navarro involved a sentence for offenses committed after the honorable discharge, and ordinarily enhanced penalties for prior offenses are viewed as resulting from the later offense, not as penalties for the prior offense. (E.g., In re McVickers (1946) 29 Cal.2d 264, 270-271, 176 P.2d 40; Ex parte Gutierrez (1873) 45 Cal. 429, 432.) Welfare and Institutions Code section 1772 is ambiguous as to impeachment because impeachment arguably is not a penalty or disability. The impeached witness or defendant may still testify, and the trier of fact may accept the testimony. By way of contrast, there is no definition of penalties and disabilities which might reasonably be set forth which would exclude the prohibition of Penal Code section 12021.
Second, both cases expand the definition of "penalties and disabilities," and furnish little support for a narrow construction. As People v. Navarro, supra, points out: "Sections 1179 and 1772 clearly reflect a legislative policy enunciated almost 100 years ago to provide incentives to youthful offenders to work towards honorable dismissal or honorable discharge." (7 Cal.3d at p. 277, 102 Cal.Rptr. 137, 497 P.2d 481.) Refusal to apply the release of section 1772 to some penalties and disabilities, as the majority do, does not increase the incentives.
The majority also rely by way of analogy on Penal Code section 4852.17 which, as pointed out above, provides for a pardon of rehabilitated prisoners permitting them to exercise all civil and political rights. It includes "the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored and Sections 12001 and 12021 of the Penal Code shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon." The section thus permits some pardoned ex-felons to possess concealable firearms but not others. To complete the majority's analogy would require wholesale rewriting of Welfare and Institutions Code section 1772. That is not the court's function.
I conclude that the release of Welfare and Institutions Code section 1772 of all penalties and disabilities includes a release from the prohibition of Penal Code section 12021 and that defendant's conviction for violation of section 12021 should be reversed.
PENALTY
Obviously, the erroneous conviction of violation of Penal Code section 12021 was an aggravating factor in considering the circumstances of the crime for which the defendant was convicted. In addition, there was evidence that defendant possessed a concealable weapon on three other occasions. Applying the instruction received with respect to the violation charged, the jury might have concluded that defendant was guilty of three uncharged felonies.
Defendant's prior criminal record shown at the penalty trial was two misdemeanor convictions and the juvenile manslaughter conviction which occurred while defendant was repelling an intruder of his home.
Defendant's first trial ended in a hung jury on the issue of guilt. The jury at the instant penalty trial inquired of the court during deliberations as to what would occur if they were unable to agree.
In determining whether a defendant found guilty of murder with special circumstances shall be imprisoned without possibility of parole or shall suffer the death penalty, two of the matters which may warrant the aggravated penalty are the circumstances of the crime of which the defendant has been convicted and other criminal activity of the defendant. (Pen.Code, § 190.3, subds. (a) & (b).) In the instant case, the jury erroneously found that in committing the murder defendant also was guilty of a violation of Penal Code section 12021, a felony, thus aggravating the basic offense. In addition, the jury may have erroneously concluded that defendant was guilty of three additional felony violations of section 12021 when, in fact, possession of the concealable weapons on the four occasions was innocent conduct.
When we consider the erroneous finding that defendant committed one felony and the potential erroneous findings of three other felonies in the light of the jury's inquiry and defendant's prior record, there is a reasonable possibility, and indeed a real probability, that the error in the instruction caused the jury to conclude that a sentence of life imprisonment without possibility of parole was insufficient punishment for defendant.
I would reverse the conviction of violation of Penal Code section 12021 with directions to dismiss the charge. I would also reverse the penalty judgment.
ARGUELLES, Justice, concurring and dissenting.
I concur in the majority opinion in all respects, with the exception of its affirmance of defendant's conviction for violation of Penal Code section 12021 (hereafter section 12021), possession of a concealable firearm by an ex-felon. On that point, I agree with Justice Broussard that defendant was not an "ex-felon" for purposes of the section 12021 charge because he had obtained an honorable discharge from the Youth Authority under Welfare and Institutions Code section 1772 (hereafter section 1772) following his 1972 manslaughter conviction. As Justice Broussard's opinion explains, section 1772 expressly provides that such an honorable discharge shall release a person "from all penalties and disabilities resulting from the offense or crime for which he or she was committed," and the Attorney General, in a formal opinion issued nearly 30 years ago, specifically concluded that section 12021 is one of the "penalties and disabilities" of which an honorable dischargee is relieved by virtue of section 1772. (See 32 Ops.Cal.Atty.Gen. 43, 45-46 (1958).) Although the Legislature later amended the somewhat analogous provisions of Penal Code section 1203.4--which govern the effect of a dismissal of charges after the successful completion of probation--to provide that a Penal Code section 1203.4 dismissal shall not affect a discharged probationer's status for purposes of section 12021 (Stats.1961, ch. 1735, § 1, p. 3744), the Legislature has not yet made a similar change in section 1772. While this may be an oversight that the Legislature may want to cure in the future, until the Legislature amends the provision I believe we must apply section 1772 as it currently reads and has been interpreted. Indeed, as I read the Attorney General's brief, he has virtually conceded that, in light of the current language of section 1772 and the past authorities construing similar language, defendant's section 12021 conviction must be reversed. 1 Accordingly, I join Justice Broussard's conclusion on this issue.
Unlike Justice Broussard, however, I do not believe that this error could have prejudiced defendant at the penalty phase. Although it is true that under the court's penalty phase instructions the jury might theoretically have considered the section 12021 conviction as an aggravating factor, the prosecutor did not argue that the jury should view the possession-of-a-firearm conviction as a significant or even a subsidiary factor which should lead it to impose a penalty of death rather than life without possibility of parole; indeed, the prosecutor never even mentioned the section 12021 conviction in his penalty phase argument at all. And while the concurring and dissenting opinion speculates that the jury may have improperly concluded that defendant was guilty of three additional uncharged violations of section 12021 because there was evidence in the record that he had possessed a concealable weapon on three other occasions in the past, neither the prosecutor nor any one else ever suggested that section 12021 was relevant to, or should affect the jury's consideration of, these other incidents, and it seems to me somewhat far-fetched to assume that the jury would engage in such reasoning on its own. Because defendant's principal culpability in this case stemmed from his violent use of a firearm to kill the victim rather than simply his wrongful possession of the weapon, and because the prosecutor--in discussing defendant's past conduct--strongly emphasized the numerous instances in which defendant had in the past actually used a firearm in a violent manner, 2 there is in my view no risk that the jury's penalty determination in this case was improperly influenced by the erroneous possession-of-a-firearm conviction.
Accordingly, while I dissent from the affirmance of the section 12021 conviction, I concur in all other aspects of the majority opinion, including the affirmance of the penalty judgment. --------------- 1 The 1977 death penalty legislation was repealed by initiative measure the following year. (Prop. 7, Gen. Elec. (Nov. 7, 1978).) Accordingly, all statutory references to the 1977 legislation are designated "former" section 190 et seq. All statutory references are to the Penal Code unless otherwise indicated. 2 In fact, defendant fatally shot Alcus Dorton, Dorothy's father, 10 years earlier. Dorton was drunk and provoked a confrontation with defendant by flirting with defendant's girlfriend. Defendant was convicted of voluntary manslaughter. 3 Larry was not shown to the jury. 4 We decline defendant's request to take judicial notice of the expert testimony on eyewitness identification presented in his first trial. Such testimony is irrelevant to defendant's claim that the prosecutor committed misconduct in the second trial. 5 In addition, it is an inaccurate statement of current law to categorize expert testimony on eyewitness identification with the views of polygraph operators, hypnotists, and truth drug administrators. In People v. McDonald (1984) 37 Cal.3d 351, 373, 208 Cal.Rptr. 236, 690 P.2d 709, we specifically distinguished such expert testimony from evidence "involving novel devices or processes such as lie detectors, 'truth serum,' ... and hypnosis...." Moreover, we held in McDonald that "When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony." (Id. at p. 377, 208 Cal.Rptr. 236, 690 P.2d 709.) To the extent that the court's comments in People v. Guzman, supra, 47 Cal.App.3d 380, 384-386, 121 Cal.Rptr. 69, are in conflict with our holding in McDonald, Guzman is disapproved. 6 This crime was apparently defendant's fatal shooting of Alcus Dorton, father of one of the eyewitnesses herein. 7 We are also unpersuaded by a 1958 opinion of the Attorney General which concluded that a person honorably discharged from the Youth Authority is not subject, inter alia, to section 12021 simply because section 1203.4 and Welfare and Institutions Code section 1772 "are essentially identical." (32 Ops.Cal.Atty.Gen. 43, 46.) Accordingly, we decline to accept the People's concession of error on this issue. 8 Defendant also claims that trial counsel's failure to keep from the jury evidence of his prior manslaughter conviction amounted to ineffective assistance. We are not persuaded. Even if we can conclude that counsel's performance was deficient, we simply cannot conclude that such deficient performance subjected the defense to prejudice: there is not a reasonable probability that the result would have been more favorable if counsel had kept the conviction from the jury. 9 Defendant also claims he was denied effective assistance of counsel because his attorney failed to object to the foregoing instances of alleged prosecutorial misconduct in the penalty phase. Because we find no such misconduct, the claim is without merit. For the same reason there is no merit in defendant's additional point that the trial court should have acted on its own motion to "curb" the alleged misconduct of the prosecutor. 10 Today the law is different. Under the 1978 death penalty legislation, if the jury is unable to agree on penalty the court must impanel a new jury; if the second jury is also deadlocked, the court has discretion to impanel a third jury or to impose a sentence of life imprisonment without possibility of parole. (§ 190.4, subd. (b).) 1 Section 1772 provides: "(a) Every person honorably discharged from control by the Youthful Offender Parole Board who has not, during the period of control by the authority been placed by the authority in a state prison shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed, and every person discharged may petition the court which committed him or her, and the court may upon such petition set aside the verdict of guilty and dismiss the accusation or information against the petitioner who shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed, including, but not limited to, any disqualification for any employment or occupational license, or both, created by any other provision of law. However, such a person shall not be eligible for appointment as a peace officer employed by any public agency if his or her appointment would otherwise be prohibited by Section 1029 of the Government Code. "(b) Notwithstanding the provisions of subdivision (a), such person may be appointed and employed as a peace officer by the Department of the Youth Authority if (1) at least five years have passed since his or her honorable discharge, and the person has had no misdemeanor or felony convictions except for traffic misdemeanors since he or she was honorably discharged by the Youthful Offender Parole Board, or (2) the person was employed as a peace officer by the Department of the Youth Authority on or before January 1, 1983. No person who is under the jurisdiction of the Department of the Youth Authority shall be admitted to an examination for a peace officer position with the department unless and until the person has been honorably discharged from the jurisdiction of the department by the Youthful Offender Parole Board. "(c) Every person discharged from control by the Youthful Offender Parole Board shall be informed of this privilege in writing at the time of discharge. " 'Honorably discharged' as used in this section means and includes every person whose discharge is based upon a good record on parole." 1 In a supplemental brief directed in part to this issue, the Attorney General states: "Although no existing case authority is directly on point, the best reasoning supports the view that the restrictions on firearm possession contained within section 12021 do not apply to honorable dischargees." 2 As the majority opinion notes, at the penalty phase the prosecution presented evidence of three incidents preceding the instant homicide in which the defendant had violently used a firearm: (1) his shooting and killing of Alcus Dorton in 1968, (2) his firing of three shots through the front door of Bobby Ingram's residence in 1974, resulting in the wounding of Ingram, and (3) his firing of a shot at Vicky Clark in 1974, apparently because he was angry over her refusal to purchase a gun from him.