Opinion
Rehearing Granted Feb. 20, 1986.
Opinion on pages 315-352 omitted.
REHEARING GRANTED
[710 P.2d 883] Karl Phaler, San Diego, under appointment by the Supreme Court, for defendant and appellant.
Frank O. Bell, Jr., State Public Defender and Monica Knox, Deputy State Public Defender, as amici curiae on behalf of defendant and appellant.
John K. Van de Kamp, Atty. Gen., Robert F. Katz, John R. Gorey, Gary R. Hahn and Susan D. Martynec, Deputy Attys. Gen., for plaintiff and respondent.
BROUSSARD, Justice.
This case arose under the 1978 death penalty initiative, now codified as Penal Code sections 190-190.5. Defendant was convicted under this statute of two counts of first degree murder and attempted robbery with two special circumstances attaching to each count--murder during the commission of attempted robbery and multiple murder. In addition, defendant was also convicted of six other robbery charges, stemming from three additional incidents which were separate from but related to the principal episode and which were consolidated with the murder charges for purposes of trial.
Following defendant's convictions at the guilt phase, the jury fixed the penalty at death. The appeal to this court is automatic. For reasons outlined below, we will affirm defendant's convictions but reverse the sentence of death.
I. SUMMARY OF FACTS AND PROCEEDINGS.
(A) The Radio Shack Incident.
On January 5, 1981, Robert Randolph and Dwight Ingram were working at a Radio Shack store in Los Angeles. Defendant and a male companion entered the store, and defendant walked directly to the rear. His companion pointed a gun at Ingram and informed him that this was a robbery. After being warned not to move or have his head blown off, Ingram removed money from a drawer and placed it along with his personal cash into a Radio Shack bag. Meanwhile, defendant entered the rear office with a four-inch knife in his hand and ordered Randolph to get under his desk. After binding the hands of the two employees, the robbers left, taking the day's receipts and several stereo items.
Later that evening, two Los Angeles police officers on a routine patrol on Ventura Boulevard observed defendant and his companion, Brown, walking along the street and noticed that Brown appeared to be carrying a gun. [710 P.2d 884] The officers turned into a parking lot and saw Brown, whom they detained and patted down, without finding a gun. They subsequently observed an interior light on in an orange Vega parked in the lot about 50 feet away. They went over to the car and saw defendant lying on the front seat. In the vehicle, the officers observed various items taken in the Radio Shack robbery. The following day, the two Radio Shack employees identified defendant in separate photographic lineups.
(B) The West Side Robberies and Murders.
On the afternoon of January 20, 1981, Jack Krim and Christian Brugman were working at M and B Jewelers on West Third Street in Los Angeles. Defendant rang the outside bell and Krim buzzed him into the store through two security doors.
Defendant asked Krim, who was at the front jewelry counter, whether he bought gold. At the same time, he removed a gold chain from around his neck and placed it on the counter. As he turned to weigh the chain on his scale, Krim felt something at his back and heard defendant say, "Where's the cash?" Turning around, Krim saw defendant pointing a gun at him.
Krim told defendant that he did not have any cash and begged him not to shoot. Defendant pulled the top of his small automatic backwards, and the gun clicked. Krim then grabbed his hand and forced it so the gun pointed away. The two wrestled, while defendant repeatedly screamed, "Where is the cash?"
Defendant then forced a struggling Krim into the back office, where he opened the safe. He removed some envelopes containing precious stones and ran out of the shop through the back door. Videotape cameras recorded most of the activity which had occurred and the tapes were later introduced as evidence; in addition, both Krim and Brugman later identified defendant through a photo lineup.
Earlier that afternoon, defendant had met John Darryl Jones and Austin Willis. He told them he wanted to "make some money," and offered them $10 worth of gas if they would drive him. The three then drove together to the area of Third and Fairfax in a Cadillac belonging to Jones' brother. After they parked, defendant got out and took the gold chain with him.
After about 10 minutes, Jones and Willis saw defendant running towards them. In his hands he was carrying the gold chain, some white envelopes and the gun. Defendant seemed very agitated. He told them he had robbed a jewelry store and that he had not wanted to leave anyone alive but that the gun had malfunctioned. The three then left the area in the car, as defendant worked on his gun, finally throwing it on the floor.
The trio next stopped at a Rolls Royce repair facility. Defendant asked the others to help him rob the place, but the attempt failed when both Jones and Willis lost their nerve and left. Jones then drove to the vicinity of Wilshire and Saltair and parked.
Defendant exited the car, with the gold chain in his hand and the gun in his back pocket, and walked around the corner on Wilshire without stating his intentions. Jones and Willis also got out of the car, and Jones began urinating on the side of a building. Shortly thereafter, they both heard gunshots, and Jones could see the sweater worn by defendant through the back door of the O and T Jewelry Store. Jones and Willis soon heard glass breaking and saw defendant leave the store through a broken window.
Two passersby also witnessed the scene at the O and T Jewelry store and both testified at trial. Their testimony confirmed Jones' and Willis' description of the events, and at least one tentatively identified defendant as the man seen running from the store.
According to the testimony of Jones and Willis, defendant emerged from the store window and ran back to the car with the gun in his hand, but without the gold chain. Jones drove away quickly, and shortly thereafter defendant threw the gun out [221 Cal.Rptr. 885] [710 P.2d 964] through the sun roof of the car. He then told them that he had shot two people, not wanting to leave anyone to identify him.
Diran Odel, co-owner of O and T Jewelry store, died of a gunshot wound to the head. He had another wound in his arm. Kegam Toran, Odel's partner, also died of a gunshot wound to the head.
Later in the evening of January 20, the murder weapon was found on the sidewalk at Texas and Saltair. The bullets recovered from the two victims were identified as having been fired from this gun. Defendant's gold chain was found on the premises of O and T Jewelry (the store did not carry this type of chain). In addition, a latent print on the countertop at O and T Jewelry was subsequently identified as defendant's.
Austin Willis was arrested early the next morning, January 21, following surveillance of the Cadillac. John Darryl Jones was arrested a short time later. Examination of the clothing which the two had worn did not reveal any fragments of glass. Willis and Jones were kept apart and interviewed separately. Both identified defendant as the murderer.
Nearly three months later, defendant was apprehended following the armed robbery of a Beverly Hills motoring accessories store. Items stolen in this robbery and a small handgun were recovered. At the preliminary hearing on these Beverly Hills charges, several employees of the auto parts store positively identified defendant as one of the robbers who had wielded a gun.
(C) Procedural History.
Informations in the three consolidated cases (amended to include two allegations of prior convictions) were filed on October 8, 1981. The 10-count informations charged the Radio Shack robbery as count 1; the robbery at M and B Jewelers as count 2; the attempted robberies and murders at O and T Jewelry as counts 3 through 6; and the Beverly Hills robbery of 4 persons at the auto parts store as counts 7 through 10. In addition, defendant was charged with three allegations of firearm use and one allegation of knife use in connection with the various robbery charges.
On January 6, 1982, defendant (represented by Attorney Brian Braff) waived his rights to a jury trial and submitted counts 7 through 10 of the consolidated information (the Beverly Hills incident) on the transcript of the preliminary hearing. Five days later, the court found him guilty of four counts of robbery in the Beverly Hills incident, finding a firearm use allegation true as to one count. Sentencing on these charges was delayed pending completion of his trial on the other charges. Subsequently, Attorney Curtis Shaw became the sole representative for defendant.
After a disagreement between the defendant and Shaw over trial tactics, defendant's mother considered retaining private counsel. Attorney Shaw had wanted to use a psychological defense which would have included evidence of defendant's history of drug abuse, but defendant refused to permit this. After they reached an agreement not to go forward with such a defense, defendant decided to retain Shaw as his attorney and the case was set for trial.
(D) Guilt Trial.
The evidentiary portion of defendant's guilt trial lasted five days. The prosecution presented considerable evidence concerning the Radio Shack robbery, the robbery at M and B Jewelers, and the attempted robberies and murders at O and T Jewelry. As noted above, eyewitnesses positively identified defendant regarding his participation in all three incidents.
The defense presented only one witness, defendant himself. Defendant admitted [221 Cal.Rptr. 886] [710 P.2d 965] the facts of the robberies at the M and B Jewelers as they had been presented by the People. He also identified the chain left at O and T Jewelry as the one he had also used in the M and B robbery. However, defendant offered a different version of the murders which occurred at O and T Jewelry. He testified that he and Jones had entered O and T Jewelry to "case" the location and emerged to discuss the planned robbery. Willis then went into the store with the gun and gold chain. Defendant testified that he was outside the store when he heard the shots fired and that Willis later told him he had "dropped" the two victims. Defendant did not testify with respect to the Radio Shack matter.
Prior to defendant's testimony, defense counsel Shaw stated on the record (though outside the presence of the jury) that he had continually advised the defendant not to take the stand in his own defense. However, recognizing defendant's basic constitutional right to testify, as affirmed by this court in People v. Robles (1970) 2 Cal.3d 205, 85 Cal.Rptr. 166, 466 P.2d 710, counsel reluctantly permitted him to testify in his own behalf. This disagreement is raised by appellate counsel as evidence of why the court should have further explored the potential conflict between defendant and his trial counsel (see post, pp. 889-891 of 221 Cal.Rptr., pp. 968-970 of 710 P.2d).
Following the evidentiary portion of the guilt trial but before closing argument by both sides, defendant began to act in a bizarre manner. He appeared in court in a jail hospital ward gown, and defense counsel requested a recess so that his client could be examined by physicians as to his competency to stand trial. This was agreed to, and defendant was subsequently examined by two court-appointed psychiatrists, pursuant to Penal Code sections 1368 and 1369. All of these proceedings took place outside the presence of the jury. After examining defendant, both psychiatrists testified that in their opinion defendant was faking. They further stated that defendant was competent to assist in his own defense should he decide to cooperate.
Since defendant continued to exhibit bizarre behavior, the court decided that his continued presence would be disruptive and possibly prejudicial to his own case, and ordered him placed in a lockup where he would be able to hear the remaining portion of the trial. (Defense counsel agreed to this arrangement after consulting with defendant.) The court then instructed the jury on the guilt phase issues.
For example, defendant began removing his clothes in the courtroom, lay sprawled out on the counsel table, and generally behaved in a very odd and uncooperative manner.
The jury subsequently found defendant guilty on all counts. In addition, the jury found true the special circumstance of multiple murder and murder in the course of attempted robbery, with respect to each of the two murders. Further, the jury returned special written verdicts finding that each first degree murder was intentional, deliberate, premeditated, and done with express malice aforethought.
(E) Penalty Phase Trial.
At the penalty trial the following week, the prosecution called a number of witnesses to testify about a variety of incidents in defendant's past. These included several instances of alleged criminal activity while defendant was in prison as well as an incident in which defendant wounded his mother and a friend with a shotgun. In addition to this testimony, the prosecution introduced documentary evidence regarding defendant's prior felony convictions for rape and armed robbery.
The court properly instructed the jury that prior criminal activity could not be considered as an aggravating factor unless such acts were proven beyond a reasonable doubt. (See People v. Robertson (1982) 33 Cal.3d 21, 53-55, 188 Cal.Rptr. 77, 655 P.2d 279.) The court also instructed on the elements of the various crimes relevant to the penalty phase evidence.
The prosecution also called Kenneth Ryder, defendant's parole agent from mid-1979 to mid-1980, to the stand. Rather than questioning Ryder about any specific acts of misconduct, the prosecution asked whether defendant was easy to supervise on parole. Mr. Ryder stated that defendant was "manipulative, avoided supervision, making merely enough contact to avoid what we call a suspension for absconding." Parole Agent Ryder repeated several of these characteristics in later testimony. He also stated that he believed [221 Cal.Rptr. 887] defendant was addicted to narcotics because his cumulative summary had a history[710 P.2d 966] of controlled substance abuse for which he was being treated during the parole period.
Defendant was present in the courtroom throughout the entire penalty phase. His counsel chose not to put on any witnesses of his own, but extensively cross-examined several of the prosecution's witnesses.
On cross-examination, defendant's mother testified that she had experienced difficulty with her son because of drugs, particularly PCP. When defendant would experiment with PCP, he would go out of control and act wildly, thinking everyone was his enemy. His mother explained that the police would not help her and that she had asked his parole officer many times for assistance.
Defense counsel also introduced defendant's medical records from Metropolitan State Hospital into evidence. In his closing argument, counsel attempted to portray defendant as a "victim of society"--someone with serious drug and mental problems who had never received the help he needed. He reiterated Mrs. Hudson's testimony about her son's hallucinations and emphasized her futile attempts to obtain some sort of treatment for him. After deliberating for several hours, the jury returned a verdict of death.
II. GUILT PHASE ISSUES.
(A) Consolidation.
Defendant contends that the trial court erred in applying Penal Code section 954 to consolidate all of the charges set forth in the information. Penal Code section 954 provides in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts.... [P]rovided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."
Defendant argues that the trial court improperly consolidated the information stemming from the separate robbery incidents because the charged offenses were neither "of the same class" nor "connected together in their commission." He further contends that the consolidation order constituted prejudicial error because it imposed additional burdens upon his two defense attorneys and ultimately impaired his right to adequate legal representation in a complex capital case.
Contrary to defendant's assertion, the statutory requirements for joinder under section 954 were satisfied here. It is obvious that the robbery and attempted robbery charges set forth in the information belong to the same class of crimes. (People v. Conrad (1973) 31 Cal.App.3d 308, 315, 107 Cal.Rptr. 421.) As for the robbery and murder charges, they are also deemed to be of the "same class," insofar as both offenses share common characteristics as assaultive crimes against the person. (People v. Rhoden (1972) 6 Cal.3d 519, 524-525, 99 Cal.Rptr. 751, 492 P.2d 1143; Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 135, 172 Cal.Rptr. 86.)
Furthermore, offenses which are committed at different times and places against different victims are nevertheless "connected together in their commission" when they are, as here, linked by a "common element of substantial importance." (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752; People v. Polk (1964) 61 Cal.2d 217, 230, 37 Cal.Rptr. 753, 390 P.2d 641; People v. Chessman (1959) 52 Cal.2d 467, 492, 341 P.2d 679.) "[T]he element of intent to feloniously obtain property runs like a single thread through the various offenses, ..." (Chessman, supra, at p. 492, 341 P.2d 679; Conrad, supra, 31 Cal.App.3d at p. 315, 107 Cal.Rptr. 421.) In addition, the facts underlying the joined offenses share certain [221 Cal.Rptr. 888] characteristics--the armed robber, usually joined by an accomplice, victimized small [710 P.2d 967] businesses which were managed by few employees, sold specialized merchandise, and were located in the same geographical area.
"The determination that the offenses are ' "joinable' under section 954 is only the first stage of analysis because section 954 explicitly gives the trial court discretion to sever offenses or counts 'in the interest of justice and for good cause shown.'' ' " (Williams v. Superior Court (1984) 36 Cal.3d 441, 447, 204 Cal.Rptr. 700, 683 P.2d 699; Coleman, supra, 116 Cal.App.3d at p. 135, 172 Cal.Rptr. 86.) Since the statutory requirements for joinder were met in the present case, appellant can establish error only on a clear showing of prejudice. (Williams v. Superior Court, supra, at p. 447, 204 Cal.Rptr. 700, 683 P.2d 699; People v. Kemp (1961) 55 Cal.2d 458, 477, 11 Cal.Rptr. 361, 359 P.2d 913; People v. Poon (1981) 125 Cal.App.3d 55, 69, 178 Cal.Rptr. 375.)
Defendant claims that consolidation was prejudicial because it impaired his right to effective assistance of counsel by placing additional burdens on each of his defense attorneys, particularly on the attorney who handled the capital charges. This argument mirrors defendant's second contention, infra, regarding the issue of dual representation in capital cases. Since he asserts that the additional burdens of consolidation should have been shared by two defense counsel, it is actually the subsequent denial of dual representation, not the consolidation order itself, which gives rise to his somewhat confused inadequate assistance argument. Defendant's attempt to frame the question of inadequate assistance of counsel within the context of the consolidation order merely serves to obfuscate the real issue.
The essence of defendant's claim is that prejudice is inevitable whenever a capital case is consolidated with unrelated or independent offenses. Defendant argues that admitting evidence of unrelated charges requires the court to rely on jury instructions to prevent the jury from merely combining the bulk of the evidence and convicting the defendant on the basis of the numerous charged offenses. Therefore, defendant asks us to conclude that such joinders should never be permissible.
While courts must always examine consolidation motions for their potentially prejudicial effect, particularly in capital cases (see, e.g., Williams v. Superior Court, supra, 36 Cal.3d 441, 454, 204 Cal.Rptr. 700, 683 P.2d 699), there is no basis for adopting such a broad per se rule. (See, e.g., People v. Caldwell (1980) 102 Cal.App.3d 461, 483, 162 Cal.Rptr. 397; Conrad, supra, 31 Cal.App.3d at p. 315, 107 Cal.Rptr. 421.) Moreover, we find that the joinder of the various informations in the instant case satisfied all statutory requirements, did not unfairly burden his counsel, and did not serve to prejudice defendant under the recent standard enunciated in Williams, supra. As such, we conclude that the trial court's consolidation of the informations was not an abuse of discretion.
This court wishes to emphasize, however, that great care should always be taken when considering motions for consolidation in capital cases.
(B) Dual Representation.
Defendant also contends that the trial court's refusal to permit continued dual representation constituted reversible error. In Keenan v. Superior Court (1982) 31 Cal.3d 424, 180 Cal.Rptr. 489, 640 P.2d 108, we held that under certain circumstances, a trial court's denial of an indigent defendant's motion for the appointment of a second attorney in a capital case (Pen.Code, § 987.9) is an abuse of discretion. Recognizing the importance of a capital defendant's right to a complete and full defense, we concluded that "under a showing of genuine need ... a presumption arises that a second attorney is required." (Keenan, supra, at p. 434, 180 Cal.Rptr. 489, 640 P.2d 108.) [221 Cal.Rptr. 889] We hereby reemphasize the principle that trial courts must "apply a higher standard than bare adequacy to a defendant's request for additional counsel." (Keenan, supra, 31 Cal.3d at p. 434, 180 Cal.Rptr. 489, 640 P.2d 108.) The initial burden, however, is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges. The record clearly reveals that defendant in this case failed to meet this initial burden.
Defendant contends that consolidation deprived him of adequate legal assistance because it forced Attorney Shaw to defend him against the Beverly Hills robbery charges as well as the capital charges. Prior to consolidation, the Beverly Hills robbery charges had been handled by Attorney Braff, but after those charges had been submitted on the transcript of the preliminary hearing, it was decided to discontinue dual representation.
The Beverly Hills robbery charges had virtually no impact on the capital charges because no evidence of those charges was ever presented to the jury during the guilt phase of defendant's consolidated trial. In fact, Braff was the attorney who represented defendant when the Beverly Hills charges were submitted on the transcript of the preliminary hearing. The only mention of the Beverly Hills convictions came during the prosecution's presentation of the penalty phase evidence. Moreover, since Braff was originally appointed to represent defendant on the Beverly Hills robbery charges, there was never any showing that Braff's assistance would be critical to his defense in the consolidated trial. Thus, defendant's assertion that he was prejudiced by the discontinuation of dual representation is belied by the record.
Attorney Shaw did not, however, assert defendant's right to a second attorney under Penal Code section 987.9 and made no attempt to present the trial court with specific facts and argument to establish a presumption of genuine need for dual counsel. Furthermore, our review of the record reveals no evidence to show that counsel was hampered either by the consolidation of the informations or the discontinuation of dual representation to such an extent that he could not provide his client with adequate representation. Neither does defendant allege ineffective assistance of counsel.
In Keenan, on the other hand, counsel established genuine need by showing that he had to interview approximately 120 witnesses, prepare for extensive scientific and psychiatric testimony, develop issues and evidence to support mitigation of the possible death sentence, and anticipate the prosecution's introduction of evidence from five other unrelated criminal cases pending against the defendant. (Keenan, supra, 31 Cal.3d at p. 432, 180 Cal.Rptr. 489, 640 P.2d 108.)
We have previously held that capital defendants do not have the absolute right to the appointment of an additional attorney. (People v. Jackson (1980) 28 Cal.3d 264, 286, 168 Cal.Rptr. 603, 618 P.2d 149.) The trial court, in its discretion, may permit dual counsel where the circumstances in a particular case seem to warrant it. (Id., at p. 287, 168 Cal.Rptr. 603, 618 P.2d 149.) Here, however, defendant's abstract assertion that consolidation in capital cases inherently imposes an undue burden on defense counsel cannot be used as a substitute for a showing of genuine need.
(C) Conflict With Appointed Counsel.
Defendant strenuously argues that the trial court committed reversible error when it continued trial proceedings without giving him the opportunity to state the specific reasons for his "conflict" with appointed counsel. Specifically, he contends that when appointed counsel, Curtis Shaw, informed the court that he was considering the idea of retaining private counsel in lieu of Mr. Shaw, the court had a duty under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, to give defendant an opportunity to state fully the grounds for his dissatisfaction with appointed counsel.
At the outset of the proceedings, prior to the voir dire of the jury, the court was considering the issue of the continuance of the trial date. At this point, Mr. Shaw informed the court that defendant was [221 Cal.Rptr. 890] [710 P.2d 969] seeking to hire a private attorney and that his mother was attempting to raise the necessary attorney fees. Counsel also indicated that there was a "difference of opinion" between himself and the defendant with respect to the trial tactics which would be employed in the defense. During the ensuing discussion, the court advised defendant that a private attorney might cost $25,000-$30,000 and that new counsel might choose a similar approach to that recommended by Mr. Shaw. In response to a question from the court, defendant indicated that he had spoken to a private attorney, a Mr. Tarlow, and the court then granted a continuance so that defendant could further explore the possibility of retaining new counsel.
Two days later, Mr. Shaw informed the court that defendant would not be hiring new counsel and that he had discussed the "ramifications" of this with his client. Counsel further explained that the disagreement stemmed from defendant's refusal to permit any type of psychological defense, which would have raised defendant's history of drug abuse. The court then asked defendant: "Mr. Lucky, have you got any problems with Mr. Shaw handling this, other than you think the case should be handled one way or the other?" Defendant replied, "That's about all, Your Honor." The court then asked defendant whether he had any complaints about starting the trial in five days, and he replied that he did not. The court subsequently set the case for trial on the agreed upon date, and defendant never raised any indications throughout the remainder of the proceedings that he had any form of disagreement with his appointed counsel.
In People v. Marsden, supra, 2 Cal.3d at page 124, 84 Cal.Rptr. 156, 465 P.2d 44, we held that where a judge denies a motion for the substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, the judge abuses his or her discretion to determine the competency of the attorney. We have further held that a defendant must be permitted to state the reasons why he believes that a court-appointed attorney should be discharged. (Ibid.; People v. Lewis (1978) 20 Cal.3d 496, 497, 143 Cal.Rptr. 138, 573 P.2d 40.)
The People contend that both Marsden and Lewis are easily distinguishable from the facts of the instant case. They argue that the trial court here was not required to make any further inquiry into defendant's reasons for attempting to hire a private attorney because defendant never moved, or even asked for, substitution or discharge of his court-appointed attorney. They further add that when the court directly asked the defendant whether he had any conflict with Mr. Shaw, other than a disagreement over trial tactics, defendant indicated that he had none. In addition, they contend that the defendant was given several opportunities to address the court about this matter and never once requested another attorney. The record fully supports these contentions.
Our review of the Marsden and Lewis cases as well as this court's decision in People v. Hidalgo (1978) 22 Cal.3d 826, 827, 150 Cal.Rptr. 788, 587 P.2d 230 clearly reveals that a trial court's duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel. The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing. We have previously recognized that there is no constitutional right to an attorney who would conduct the defense of the case in accord with the whims of an indigent defendant. (People v. Rhines (1982) 131 Cal.App.3d 498, 505, 182 Cal.Rptr. 478; People v. Kaiser (1980) 113 Cal.App.3d 754, 761, 170 Cal.Rptr. 62; People v. Lindsey [221 Cal.Rptr. 891] (1978) 84 Cal.App.3d 851, 860, 149 Cal.Rptr. 47; People v. Floyd (1970) 1 Cal.3d 694 at 704, 83 Cal.Rptr. 608, 464 P.2d 64, overruled on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, 148 Cal.Rptr. 890, 583 P.2d 748.) Nor does a disagreement between defendant and appointed counsel concerning trial tactics necessarily compel the appointment of another attorney. (People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008, cert. den. 401 U.S. 919, 91 S.Ct. 903, 27 L.Ed.2d 821; People v. Rhines (1982) 131 Cal.App.3d 498, 505, 182 Cal.Rptr. 478.)
We do not necessarily require a proper and formal legal motion, but at least some clear indication by defendant that he wants a substitute attorney. The record in this case reveals no such indication by defendant.
Defendant next directs our attention to three instances which occurred after trial commenced which, assertedly, reflect a breakdown in the attorney-client relationship, thereby jeopardizing his right to effective assistance of counsel. The first instance occurred when Mr. Shaw informed the court that his client had decided to take the stand in his own behalf, against the advice of counsel. The People correctly respond that defendant's decision to testify in his own behalf does not constitute proof that there had been a breakdown in his relationship with his counsel, nor does it prove that defendant was denied his right to effective assistance of counsel. We have held that the right to testify in one's own behalf is of such fundamental importance that a defendant who demands to take the stand, contrary to the advice of counsel, has the right to do so. (People v. Robles (1970) 2 Cal.3d 205, 85 Cal.Rptr. 166, 466 P.2d 710.) However, we have never held that such a situation requires that defendant be permitted new counsel, or that such a disagreement reflects a fundamental breakdown in the attorney-client relationship.
Defendant's second example involves the portion of the guilt phase proceedings, prior to closing argument and jury instructions, where defendant began to act in a very bizarre manner and was eventually removed from the courtroom. At the time, the court asked two psychiatrists to examine defendant and evaluate his competency to stand trial. Both concluded that he was voluntarily feigning mental illness. The court noted that when defendant would determine that things were not "going his way," he would choose to become uncooperative, but that when defendant decided it was in his interests to cooperate, he would cease his bizarre behavior. The People correctly contend that this was not an example of a fundamental breakdown in the attorney-client relationship but rather merely evidence of defendant's decision to be uncooperative. (People v. Floyd, supra, 1 Cal.3d at p. 705, 83 Cal.Rptr. 608, 464 P.2d 64.)
The third example cited by defendant seems to further substantiate the People's contention that defendant voluntarily elected not to cooperate with his counsel at various times in the trial. Defendant refers us to a statement on the record by defense counsel in which he explains that his client refused to cooperate in any type of psychological defense which might have involved evidence of prior drug abuse. Mr. Shaw's statement clearly reflects a disagreement between himself and defendant over tactics as well as the latter's uncooperative and perhaps unwise attitude toward his own defense. It does not, however, reflect any desire on defendant's part for a discharge of his attorney nor any duty on the trial court to conduct a Marsden hearing.
This statement actually occurred during the penalty phase of the proceedings, following the testimony of defendant's mother about his problems with drug abuse. Mr. Shaw offered it on the record, but outside the presence of the jury. The record clearly indicates that Mr. Shaw was attempting to explain to the court why he had not offered any evidence of defendant's mental state, when conceivably such evidence might have been relevant to the capital charges against his client. In addition to noting the defendant's refusal to cooperate in this type of defense, Shaw also explained that the confidential report of a psychiatrist, who had examined defendant six months earlier, did not contain findings favorable to a defense based on mental state.
In sum, since defendant never moved for the discharge or substitution of his court-appointed attorney, and declined several opportunities afforded him by the [221 Cal.Rptr. 892] [710 P.2d 971] court to state any grounds for dissatisfaction with Mr. Shaw, the trial court was under no duty to make any further inquiries. As such, no error under Marsden or Lewis resulted, and defendant is not entitled to a reversal of his conviction on these grounds.
(D) Submission of Beverly Hills Robbery Counts on Transcript of Preliminary Hearing.
Defendant contends that he is entitled to a reversal of his conviction on counts 7 through 10 on the grounds that the trial court's advice regarding his constitutional rights was incomplete and that proper waivers were not obtained before these counts were submitted on the transcript of the preliminary hearing. Counts 7-10 involved four separate charges of robbery (with one allegation of firearm use) stemming from the robbery of four persons at a Beverly Hills motor parts store, in which defendant participated almost three months after the jewelry store robberies and murders. Defendant was represented on these charges by Attorney Brian Braff; the decision to stipulate to the submission of these counts on the transcript of the preliminary hearing was made prior to commencement of trial on the capital charges but after the consolidation of the various informations.
Defendant argues that the decision to submit these counts on the transcript of the preliminary hearing was made "under pressure from the Court as trial neared to proceed with a single counsel." This is an erroneous description of these events. The record indicates that Attorney Braff and the prosecutor had been discussing the possibility of this submission for quite some time and may even have reached a tentative agreement to this effect prior to the point at which the various informations in the case were consolidated. In any event, there is absolutely nothing in the record to suggest that either defendant or the attorney who represented him on these charges made the decision to submit these four counts "under pressure." After Attorney Braff and the prosecutor had reached the agreement to submit these counts on the transcript of the preliminary hearing, the judge found defendant guilty of four counts of robbery, with one allegation of firearm use also found to be true. Sentencing on these counts was then postponed until completion of defendant's trial on the capital charges, and Attorney Shaw agreed to represent defendant for purposes of sentencing.
In Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086, we set forth a series of requirements governing the submission of cases on the transcript of their preliminary hearing: "[I]n all cases in which the defendant seeks to submit his case for decision on the transcript or to plead guilty, the record shall reflect that he has been advised of his right to a jury trial, to confront and to cross-examine witnesses, and against self-incrimination. It shall also demonstrate that he understands the nature of the charges. Express waivers of the enumerated constitutional rights shall appear. In cases in which there is to be a submission without a reservation by the defendant of the right to present evidence in his own defense he shall be advised of that right and an express waiver thereof taken. If a defendant does not reserve the right to present additional evidence and does not advise the court that he will contest his guilt in argument to the court, the defendant shall be advised of the probability that the submission will result in a conviction of the offense or offenses charged. In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute...." (Id., at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086.)
Defendant contends that the court's advisements and receipt of waivers failed to meet the requirements established by Bunnell in four areas. He argues that he was not fully advised as to his right to confrontation and cross-examination as well as of the likelihood of conviction on these charges. He further asserts that he was not advised, and therefore no proper waiver was taken, of his privilege against self-incrimination or his right to present evidence in his own defense. We deal with each of these contentions in turn, while noting that Attorney Braff never challenged the sufficiency of the pleas when they were entered and that Attorney Shaw [221 Cal.Rptr. 893] [710 P.2d 972] did not object to their introduction at the subsequent penalty phase.
Defendant first challenges the court's explanation as to the right to confront and cross-examine witnesses, arguing that the court merely emphasized the confrontation element and failed to mention the term "cross-examination." Defendant therefore concludes that he could not have properly waived this right consistent with the standards of Bunnell. The record reveals that the judge told defendant that he had "the right of confrontation, which means the right to see, to hear, and to have your lawyer question all the people who testify against you, and the right to see and hear and examine any other kinds of evidence that might be used against you." The judge then explained quite specifically what a submission on the transcript involved, noting that he would read the transcript of what had taken place at the preliminary hearing in Beverly Hills Municipal Court in May, but that the witnesses themselves would not actually be on the stand again.
Defendant argues that this explanation does not adequately support a proper waiver of his Sixth Amendment right to confront and cross-examine witnesses because of the failure to use specifically the "commonly understood" term of "cross-examination." However, as the People have correctly noted, we do not require that all such advisements be given in the language which is "literal constitutional terminology," but rather that the record show by direct evidence that the accused was fully aware of his rights. As such, explanations of these rights will be sufficient when they are phrased in nonlegalistic terms, comprehensible to the average layperson and when they effectively communicate to the defendant the essential character of the constitutional privileges which he is waiving, provided that the message does not require resort to inference. In the instant case, we find that the trial court's advisements of the right to confront and cross-examine witnesses were adequate to meet our constitutional standards, since they effectively communicated to defendant the essential character of the privileges.
People v. English (1981) 116 Cal.App.3d 361, 370, 172 Cal.Rptr. 122; People v. Bell (1981) 118 Cal.App.3d 781, 784, 173 Cal.Rptr. 669. Both quote language cited from People v. Johnson (1978) 77 Cal.App.3d 866, 874, 143 Cal.Rptr. 852, which was interpreting our decision in In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, certiorari denied 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72, regarding the requirement of express waivers of specific constitutional rights before the court's acceptance of a guilty plea offered by a criminal defendant.
Defendant next contends that the court also ignored the Bunnell requirement of an express waiver by the defendant of the right to present evidence. However, the language on which he relies states: "In cases in which there is to be a submission without a reservation by the defendant of the right to present evidence in his own defense he shall be advised of that right and an express waiver thereof taken." (Bunnell, supra, 13 Cal.3d at p. 605, italics added, 119 Cal.Rptr. 302, 531 P.2d 1086.) The trial judge in this case explicitly informed both parties that he only accepted such submissions where both sides reserved the right to present additional evidence or testimony. In addition, when he placed the matter on the calendar for further proceedings, the court again observed that "... both sides reserving the right, should they have it, to introduce additional evidence or testimony on the 11th, as they may ultimately decide so to do." Clearly, therefore, the stipulation entered into by the prosecution and the defense to submit the matter on the transcript of the preliminary hearing did reserve the right of each party to present additional evidence. Thus, it was not error for the court to fail to elicit a waiver of that right.
Defendant also contends that during its various advisements surrounding the submission of the charges on the transcript, the court erred by making only "passing mention" of the likelihood of conviction and by seeking no acknowledgment from defendant as to that probability. The People [221 Cal.Rptr. 894] [710 P.2d 973] counter that this argument is faulty in two senses. First, they direct our attention to the relevant language in Bunnell which states: "If a defendant does not reserve the right to present additional evidence and does not advise a court that he will contest his guilt in argument to the court, the defendant shall be advised of the probability that the submission will result in a conviction of the offense or offenses charged." (Ibid.) Since the parties did reserve the right to present additional evidence, the People suggest that the court was not required to advise defendant of the probability of his conviction. Second, they point out that the trial court, though not required to, did in fact on several occasions advise defendant of this likelihood, and thus the court could not possibly have committed error. Our review of the record reveals that the People are correct and that no error occurred in this regard.
For example, the trial court stated at one point, "Mr. Lucky, if we go ahead with this, the probabilities are that you're going to be convicted of those Counts." The court then repeated to defendant that he would probably be convicted of the robberies, though noting that defense counsel had indicated he would contest some of the firearm use allegations.
We turn finally to defendant's contention that there was "no discussion whatsoever" of his privilege against self-incrimination and that this too represented error under Bunnell. Once again, this contention is belied by a review of the record. The court explained to defendant that if he agreed to a submission on the transcript of the preliminary hearing, he "should do so knowing that, in effect, you'll be incriminating yourself, because the probabilities are you're going to be convicted of the robberies...." Subsequent to this advisement, defendant acknowledged that he understood the consequences of his agreement to a submission on the transcript as well as the rights he was waiving in the process.
Since we find no error under Bunnell in the court's handling of the decision by defendant to submit the four Beverly Hills robbery counts on the transcript of the preliminary hearing, we must also dismiss defendant's final contention in this regard--that it was error for the prosecution to offer evidence of these convictions at the penalty phase of defendant's trial.
Defendant premised this penalty phase argument on the assumption that his convictions on the submitted counts were improper for reasons outlined above. However, we find no error in the procedure by which these counts were submitted on the transcript of the preliminary hearing, nor in the court's subsequent judgment of guilty on these counts. Thus, their introduction as evidence of circumstances in aggravation at the penalty phase was proper under Penal Code section 190.3, subdivision (c), "[t]he presence or absence of any prior felony conviction." As such, we need not consider these issues, as defendant urges, in light of the appropriate test for prejudice at the penalty phase under People v. Robertson (1982) 33 Cal.3d 21, 54, 188 Cal.Rptr. 77, 655 P.2d 279.
Moreover, since we find no error affecting the guilt portion of defendant's trial, we affirm his conviction on all charges. Further, we also affirm the findings of special circumstances of multiple murder and murder during the course of an attempted robbery.
Defendant also contended that by excluding persons invariably opposed to the death penalty under the standards of Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 from the guilt phase of a capital trial, the state effectively denies a capital defendant the right to a jury composed of a representative cross-section of the community. We rejected this same argument in our recent opinion in People v. Fields (1984) 35 Cal.3d 329, 197 Cal.Rptr. 803, 673 P.2d 680, and find no reason to discuss it further here.
In People v. Carlos (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, we concluded that an intent to kill must be found before a defendant can be subject to a special circumstances finding under the 1978 initiative. In the case at hand, however, the judge, sua sponte, requested that the jury return special written verdicts on the issue of whether the killings in question were intentional, deliberate, premeditated, and committed with express malice aforethought. The jury found that both killings did meet this criteria. Thus, we find the Carlos requirement was satisfied in the case at bar.
III. PENALTY PHASE ISSUES.
(A) Failure to Instruct on Mitigating Evidence.
The United States Supreme Court has emphasized the importance of instructions in capital sentencing in a line of cases beginning with Gregg v. Georgia (1976) 428 U.S. 153, 190-195, 96 S.Ct. 2909, 2933-35, 49 L.Ed.2d 859. (See also Lockett v. Ohio (1978) 438 U.S. 586, 601-605, 98 S.Ct. 2954, 2963-65, 57 L.Ed.2d 973 [plurality opn.], Eddings v. Oklahoma (1982) 455 U.S. 104, 110-112, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1.) The essential import of these more recent decisions is that the instructions may not, consistent with the Eighth Amendment, restrict the discretion of a jury to select a lesser penalty than death if any mitigating factor or circumstance persuades the jury that notwithstanding aggravating factors death is not an appropriate penalty for the particular defendant.
As the Supreme Court made clear in Lockett and Eddings, capital juries must be permitted to consider any mitigating evidence in making an individualized determination of the appropriate penalty in a particular case. In this vein, instructions should fully explain to the jury that evidence of mitigating factors related solely to the defendant's background and character must be carefully weighed and may serve as the basis for a sentence less than death. Instructions which do not implement this constitutional imperative of individualized determination deny the defendant the procedural safeguards demanded by the Eighth Amendment.
Instructions on mitigating character and background evidence assumed particular importance in the case at bar. Defendant's entire effort at the penalty phase focused on eliciting sympathy for his situation, using mitigating evidence which pertained only to his difficult background. Specifically, defense counsel portrayed his client as a "victim of society"--a young man with a debilitating drug problem whom nobody had ever bothered to help. Virtually all of defense counsel's questioning of defendant's mother and parole officer was aimed at driving this point home. Defendant's mother, Birty Jo Hudson, testified at length about the problems caused by her son's use of PCP. Mrs. Hudson had actually been called to the stand by the prosecutor, who sought her testimony regarding two instances of unadjudicated criminal activity which he was attempting to prove. Defense counsel, noting that he wished to call Mrs. Hudson anyway, chose to cross-examine her at length about her son's history of drug abuse and her futile attempts to obtain help for him. She explained how defendant would become wild and out of control, believing that everyone was his enemy. She also recounted how the police and others had refused her requests for help and how repeated pleas for assistance to defendant's parole officer had proved equally unavailing.
The trial judge gave no instruction on sympathy at the penalty trial. We have held that an instruction barring sympathy as a basis for a life verdict is error (People v. Lanphear (1984) 36 Cal.3d 163, 167-168, 203 Cal.Rptr. 122, 680 P.2d 1081; People v. Easley (1983) 34 Cal.3d 858, 876, 196 Cal.Rptr. 309, 671 P.2d 813.) We have not, however, affirmatively required an instruction that pity and sympathy for the defendant would be proper considerations. As we explained in Lanphear, our objective is not to permit a jury to base its verdict on " 'factually untethered sympathy' " but to permit it to base a verdict on "mitigating evidence relevant to the defendant's background and character, which may give rise to sympathy." (36 Cal.3d p. 168, fn. 1, 203 Cal.Rptr. 122, 680 P.2d 1081.) Instructions which made it clear to the jury that they must weigh and consider mitigating character and background evidence equally with evidence of specific listed aggravating and mitigating factors might make such an affirmative instruction unnecessary.
Though choosing not to call any witnesses of his own at penalty, defense counsel substantiated Mrs. Hudson's testimony through cross-examination of her son's parole officer and by introducing into evidence defendant's medical records from Metropolitan State Hospital. These [221 Cal.Rptr. 896] [710 P.2d 975] records, refer repeatedly to defendant's "drug psychosis (PCP)." They also include such notations as "mumbled speech showed persecutory delusions"; "Admitted to drug unit but not willing to seek any help for drug problem"; and "patient is extremely hostile--paranoid ... threatening staff and appearing to hallucinate." They also contain two "Recommendations for Continuing Treatment." One stated that defendant should be scheduled for drug rehabilitation therapy and the other indicated that "patient would benefit from counseling focused on formulating realistic career goals." It is apparent that neither of these recommendations was ever acted upon.
In short, the jury was presented with the grim picture of a young man, jailed before he had finished adolescence, who had turned to drug abuse while housed in society's penal institutions. Through testimony as well as medical records, counsel repeatedly stressed that nothing had ever been done to help defendant with these problems. He ended his closing argument by telling the jury that they now had the opportunity to help defendant receive the kind of treatment he needed and to finally make something positive of his life, even if it had to be done in a prison setting.
The trial court read to the jury the statutory list of aggravating and mitigating factors, ending with factor (k), which permits consideration of "[a]ny other circumstances which extenuates the gravity of the crime even though it is not a legal excuse for the crime." It then instructed the jury "to consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed."
The court's instructions on this point followed exactly the language of the 1978 death penalty initiative statute. That statute, however, was drafted without apparent regard for the contemporaneous United States Supreme Court decision in Lockett v. Ohio (1978) 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, which placed constitutional limits on the extent to which a state could restrict a jury's discretion to consider mitigating evidence. Lockett held that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death...." (P. 604, italics in original; accord Eddings v. Oklahoma (1982) 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1.) The 1978 initiative, however, directed the jury's attention to a limited list of aggravating and mitigating factors--a list which did not appear to include the kind of character and background evidence typically offered by defendants, including that presented by the present defendant. The initiative then directed the jury to "impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances." ( § 190.3; see People v. Easley (1983) 34 Cal.3d 858, 881-882, 196 Cal.Rptr. 309, 671 P.2d 813.) "By thus requiring the jury to decide the appropriateness of the death penalty by a process of weighing the specific factors listed in the statute, the initiative necessarily implied that matters not within the statutory list are not entitled to any weight in the penalty determination." (People v. Boyd (1985) 38 Cal.3d 762, 773, 215 Cal.Rptr. 1, 700 P.2d 782.)
No case has yet resolved the problem of reconciling jury instructions under the 1978 law with the constitutional requirement of Lockett and Eddings. Three decisions under the 1977 law, however, offer guidance. In People v. Frierson (1979) 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587, defendant pointed to the final statutory factor (factor (j) under the 1977 law, factor (k) under the 1978 initiative) which permitted the jury to consider "[a]ny other circumstance which extenuates the gravity of the crime...." That language, he argued, was unconstitutionally broad, permitting the jury unlimited discretion. We replied that language was no broader than Lockett required, thus implying that the final factor permitted the jury to consider any aspect of a defendant's [221 Cal.Rptr. 897] [710 P.2d 976] character or background offered in mitigation.
In People v. Easley, supra, 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813, amicus argued that an instruction which merely listed the statutory factors was inadequate because it did not inform the jury that it may consider any mitigating evidence advanced by the defendant. Even if the final factor could be interpreted as a open-ended provision, amicus argued, a jury uninformed of that interpretive gloss could reasonably construe the language to permit consideration only of mitigating circumstances that relate to the "gravity of the crime" and not of circumstances that relate to the general character and background of the defendant. (P. 878.) Finding other reversible error, we declined to decide whether an instruction in the statutory language standing alone would be inadequate or prejudicial. We said, however, that in order to avoid future misunderstanding, trial courts should instruct the jury not only "that it may consider as a mitigating factor 'any other circumstance which extenuates the gravity of the crime ...' " but also may consider "any other 'aspect of [the] defendant's character or record ... that the defendant proffers as a basis for a sentence less than death.' " (P. 878, fn. 10, 196 Cal.Rptr. 309, 671 P.2d 813.)
In People v. Lanphear (1984) 36 Cal.3d 163, 203 Cal.Rptr. 122, 680 P.2d 1081, we considered the effect of an instruction that the jury may not base its decision on sympathy for the defendant. In reversing the penalty verdict, we explained that "both California precedent and controlling decisions of the United States Supreme Court not only permit, but mandate freedom on the part of the jury to act on the basis of sympathy or compassion when that sympathy is a reaction to evidence regarding the defendant's character or background. That evidence, as distinguished from mitigating circumstances related to the offense itself, may not reduce culpability, but it must nonetheless be considered by the jury." (P. 166, 203 Cal.Rptr. 122, 680 P.2d 1081.)
Finally, in People v. Boyd, supra, 38 Cal.3d 762, 215 Cal.Rptr. 1, 700 P.2d 782, a 1978 law case, we explained that in order to save the constitutionality of the respective acts, this court construes the final statutory factor, factor (k) in the 1978 initiative, to permit the penalty jury to consider all character and background evidence offered by way of mitigation. (P. 775, 215 Cal.Rptr. 1, 700 P.2d 782.) We adopted that construction not because it is the only reasonable construction, or even the most plausible one, but because a construction which excluded such evidence would render the act invalid under the United States Constitution. "When a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." (United States v. Delaware & Hudson Co. (1909) 213 U.S. 366, 407-408, 29 S.Ct. 527, 535, 53 L.Ed. 836; Carlos v. Superior Court (1983) 35 Cal.3d 131, 148, 197 Cal.Rptr. 79, 672 P.2d 862.) But we cannot with confidence assume that a jury hearing the unadorned words of the 1978 statute would arrive at the same interpretation of factor (k). It is not enough to construe the 1978 law to conform to constitutional standards if the instructions permit the jury to apply it in violation of those standards. Thus the instructions must make it reasonably plain to the penalty jury that it is permitted to give independent mitigating weight to any evidence of character and background which the defendant advances as a basis for a life sentence. An instruction which simply repeats the language of the 1978 statute is inadequate. The statutory language taken as a whole implies that the jury may only weigh and consider the listed aggravating and mitigating factors, and while factor (k) could be interpreted to permit consideration of defendant's character and background evidence, it would more likely be understood to permit consideration only of evidence relating to defendant's moral culpability for the charged crime. The jury instructions should remove "any legitimate [221 Cal.Rptr. 898] [710 P.2d 977] basis for finding ambiguity concerning the factors actually considered" by the jury (Eddings v. Oklahoma, supra, 455 U.S. 104, 119, 102 S.Ct. 869, 879 (conc. opn. of O'Connor, J.; People v. Easley, supra, 34 Cal.3d 858, 879, 196 Cal.Rptr. 309, 671 P.2d 813).
The court's failure to give an instruction on the duty of the jury to weigh mitigating character and background evidence is error. The trial court, however, did instruct the jury generally that "In determining which penalty is to be imposed on the defendant, you shall consider all of the evidence which has been received during any part of the trial of this case." A jury obedient to that instruction could not ignore defendant's mitigating evidence. The problem remains, however, that the court directed the jury only to "consider" that evidence as part of the mass of evidence received during both guilt and penalty phases, but called attention specifically to the statutory factors, directed the jury not only to "consider" but to "weigh" those factors, and told it to determine the penalty on the basis of the weight assigned. Thus, as in People v. Lanphear, supra, 36 Cal.3d 163, 168, footnote 1, 203 Cal.Rptr. 122, 680 P.2d 1081, "the instructions suggest to the jury that mitigating evidence relevant to the defendant's background and character, which may give rise to sympathy, is not entitled to the same consideration in weighing mitigating against aggravating factors as evidence that extenuates moral culpability." (See People v. Frank (1985) 38 Cal.3d 711, 748-751, 214 Cal.Rptr. 801, 700 P.2d 415 (Bird, C.J., conc. and dis.).)
It is doubtful whether this error, standing alone, would be prejudicial. As we shall explain, however, there are additional penalty phase errors which, in combination with the absence of an instruction on character and background evidence, justify reversal of the penalty judgment.
The case for prejudice would be stronger if the trial judge had instructed the jury, in accord with the statutory language and CALJIC No. 8.84, that if aggravating circumstances outweighed mitigating circumstances you "shall" impose a sentence of death. The judge, however, anticipated the constitutional problems that might arise from an instruction which imposed a mandatory duty to return a death verdict. (See People v. Brown (1985) 40 Cal.3d 512, 220 Cal.Rptr. 637, 709 P.2d 440.) He modified CALJIC No. 8.84 on his own motion, changing a single but crucial word, and told the jury that "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you may impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole." (Italics added.)
(B) Instructing the jury to disregard consequences.
The trial court instructed the jury to "reach a just verdict regardless of what the consequences of such verdict may be." (CALJIC No. 1.00.) In People v. Brown, supra, 40 Cal.3d 512, 538, fn. 7, 220 Cal.Rptr. 637, 709 P.2d 440, we observed that this instruction "was designed for guilt trials, at which 'defendant's possible punishment is not ... a proper matter for juror consideration....' [Citations.] However, at the penalty phase of a capital trial, the 'consequences'--the choice between the two most extreme punishments the law exacts--are precisely the issue the jury must decide. In this context, an instruction to ignore 'consequences' can be understood by the jury in the same light as an admonition to disregard sympathy, which we condemned in People v. Easley, supra, 34 Cal.3d 858, 876, 196 Cal.Rptr. 309, 671 P.2d 813 and People v. Lanphear, supra, 36 Cal.3d 163, 167-168, 203 Cal.Rptr. 122, 680 P.2d 1081. [T]his portion of CALJIC No. 1.00 should never be given in a capital penalty trial."
(C) Multiple Murder Special Circumstance Allegations.
Each murder count in the information alleged two special circumstances--murder in the course of robbery and multiple murder. Thus, based upon his commission of two murders, defendant was charged with two separate multiple murder special circumstances, and the jury found each of [221 Cal.Rptr. 899] [710 P.2d 978] these allegations to be true. While we do not question the evidentiary basis for these findings, the duplicative use of the multiple murder special circumstance allegations was error.
The multiple murder special circumstance is applicable where defendant has in the present proceeding been convicted of more than one offense of murder of the first or second degree. (Pen.Code, § 190.2, subd. (a)(3).) However, the prosecution may properly allege only one multiple murder special circumstance, even though a capital defendant may be charged with two or more murders in that proceeding. As we recently noted in our plurality opinion in People v. Harris (1984) 36 Cal.3d 36, 67, 201 Cal.Rptr. 782, 679 P.2d 433, "alleging two special circumstances for a double murder improperly inflates the risk that the jury will arbitrarily impose the death penalty, a result also inconsistent with the constitutional requirement that the capital sentencing procedure guide and focus the jury's objective consideration of the particularized circumstances of the offense and the individual offender. (Jurek v. Texas (1976) 428 U.S. 262 at pp. 273-274 [96 S.Ct. 2950 at pp. 2957] [49 L.Ed.2d at pp. 939-940].)"
We reiterate our conclusion that the appropriate charging papers should allege only one multiple murder special circumstance separate from the individual murder counts. This limitation would not prevent the jury from considering the number of murders actually committed or treating the multiplicity of killings as aggravating. Rather, it would eliminate the possibility of improperly skewing the jury's deliberations in favor of a death verdict without hampering the prosecution's ability to seek what it considered to be the appropriate punishment.
(D) Admissibility of Evidence.
The prosecutor presented testimony from Kenneth Ryder, a parole officer who had supervised defendant's parole from mid-1979 to mid-1980. Choosing not to question Ryder about any specific acts of misconduct, the prosecutor instead asked whether defendant had been "easy to supervise on parole." Ryder responded, "No.... Mr. Lucky was manipulative, avoided supervision, making merely enough contact to avoid what we call a suspension for absconding. Most contacts, however, were by telephone, very few were by actual visitation." Parole Officer Ryder also testified that he believed defendant was addicted to narcotics. Such testimony clearly relates to defendant's character and background, but it does not bear upon any of the specific aggravating or mitigating factors listed in the 1978 statute. As this court recently held in People v. Boyd, supra, 38 Cal.3d 762, 775-776, 215 Cal.Rptr. 1, 700 P.2d 782, the prosecution may not in its case in chief introduce evidence of defendant's background or character which is not probative of any specific aggravating factor. Thus, the trial court erred in permitting the prosecution to introduce the testimony of Mr. Ryder.
(E) Prejudicial Error.
In criminal cases error under California law requires reversal of the judgment only if it "is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243.) This standard applies to the guilt trial of a capital case. (People v. Frank, supra, 38 Cal.3d 711, 730, 214 Cal.Rptr. 801, 700 P.2d 415.) It is not, however, the standard which governs penalty phase error. Death is "profoundly different from all other penalties" (Eddings v. Oklahoma, supra, 455 U.S. 104, 110, 102 S.Ct. 869, 874) and the role of the penalty jury profoundly different from a jury trying guilt. The penalty jury does not function as a finder of fact (see discussion in People v. Murtishaw (1981) 29 Cal.3d 733, 771-772, fn. 34, 175 Cal.Rptr. 738, 631 P.2d 446), but renders a normative judgment on whether death is the appropriate penalty in the case before it (see People v. Brown, supra, 40 Cal.3d 512, 540-41, 220 Cal.Rptr. 637, 709 P.2d 440). California [221 Cal.Rptr. 900] [710 P.2d 979] courts have therefore recognized for many years that "any substantial error occurring during the penalty phase of the trial ... must be deemed to have been prejudicial." (People v. Robertson (1982) 33 Cal.3d 21, 54, 188 Cal.Rptr. 77, 655 P.2d 279 and cases there cited.) Whether an error is substantial requires "consideration whether there is any reasonable possibility that an error affected the verdict." (People v. Robertson, supra, 33 Cal.3d at p. 63, 188 Cal.Rptr. 77, 655 P.2d 279, conc. opn. of Broussard, J.) But although we cannot say precisely what degree of risk of harm constitutes a "reasonable possibility," it is clear that this test is intended to permit the reversal of a death penalty for error that would not justify reversal under the test of People v. Watson.
The issue of prejudice in the present case is a close and difficult one. With remarkable prescience, the trial judge anticipated many of the constitutional difficulties that might arise from a literal application of the text of the 1978 law, and modified the jury instructions to avoid those difficulties. We have, however, noted four errors in the penalty trial: (1) the court's failure to instruct the jury specifically to consider and weigh defendant's mitigating evidence of character and background; (2) its direction that the jury disregard the "consequences" of its verdict; (3) its instructions permitting the jury to regard the murders as two special circumstances instead of a single circumstance of multiple murder; and (4) the admission into evidence testimony of parole officer Ryder.
Each of these errors relates to a significant legal issue; each contains a small but real possibility of affecting the result. When the cumulative effect of all the errors is considered, the likelihood that one or more played a part in leading the jury to return a death verdict impels the conclusion that the penalty proceedings were clouded by substantial error.
IV. CONCLUSION
We affirm defendant's conviction for first degree murder, with the special circumstances of multiple murder and felony murder. At a minimum defendant will serve a sentence of life imprisonment without possibility of parole.
The penalty trial, however, was affected by several errors which in combination are sufficient to create a reasonable possibility of affecting the verdict. We therefore reverse the penalty judgment.
The judgment as to guilt, and the finding of special circumstances, is affirmed. The judgment of death is reversed, and the cause remanded for a new penalty trial consistent with the views expressed herein.
KAUS and REYNOSO, JJ., concur.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council
Assigned by the Chairperson of the Judicial Council.
GRODIN, Justice, concurring and dissenting.
I concur in the affirmance of the guilt phase conviction and special circumstance finding. I dissent from the reversal of the penalty phase judgment however; I would affirm that as well.
In recent years this court has been engaged in the challenging task of interpreting and applying the often ambiguous provisions of the current death penalty law against a backdrop of uncertain and sometimes shifting federal constitutional doctrine. In the process, we have established certain principles designed to guide application of the law in future cases. We have also been called upon, unavoidably, to reverse a number of death penalty judgments which fail to meet the statutory and constitutional standards thus confirmed.
With all respect for the contrary view of the majority, the principles which have emerged from that process do not in my opinion require reversal here. As the majority concede, the trial judge in this case anticipated many of the constitutional difficulties since disclosed in our analysis of the [221 Cal.Rptr. 901] [710 P.2d 980] 1978 law, and with "remarkable prescience" modified the jury instructions to avoid them. In light of those modifications, and of the entire record, I do not believe there is any reasonable possibility that the "errors" which the majority identify in the penalty trial, even when considered in combination, had any impact whatsoever upon the jury's verdict.
I find no realistic possibility of prejudice in the parole officer's testimony that defendant was difficult to supervise. The penalty jury heard ample proper evidence concerning defendant's long and violent criminal history, which included attacks with a shotgun on his mother and a friend. That defendant was not particularly well behaved on parole could not have come as much of a surprise. And, while I agree that there was properly only one multiple special circumstance in the case, the jury was well aware of how many murders had been committed, and it knew what facts constituted a "special circumstance" within the contemplation of the law. The prosecutor, in his argument to the jury, made no reference to the fact that more than one such special circumstance had been found.
The instructional shortcomings present a closer question. If defendant's trial were held today, the court would be obligated to instruct the jury that it should consider both circumstances which "extenuate[ ] the gravity of the crime," and "any other 'aspect of [the] defendant's character or record ... that the defendant proffers as a basis for a sentence less than death.' " (People v. Easley (1983) 34 Cal.3d 858, 878, fn. 10, 196 Cal.Rptr. 309, 671 P.2d 813.) In addition, the court would be aware that it ought not admonish the jury to render a "just verdict regardless of what the consequences of such verdict may be." While the jurors might understand that instruction to mean that they should disregard collateral consequences such as unfavorable public reaction to the verdict, the instruction is ambiguous and could be interpreted to mean they should disregard sympathy for the defendant. (People v. Brown (1985) 40 Cal.3d 512, 538, fn. 7, 220 Cal.Rptr. 637, 709 P.2d 440.)
In Brown, however, we refrained from passing judgment upon the validity of death penalty verdicts rendered without benefit of such subsequent instructional guidance, stating: "Each such prior case must be examined on its own merits to determine whether, in context, the sentencer may have been misled to defendant's prejudice about the scope of its sentencing discretion under the 1978 law." (Id., at p. 545, fn. 17.)
Applying these principles here, there is no substantial possibility that the jury misunderstood the scope of its sentencing discretion. Unlike the situation in Easley, supra, 34 Cal.3d 858, 196 Cal.Rptr. 309, 671 P.2d 813, and People v. Lanphear (1984) 36 Cal.3d 163, 203 Cal.Rptr. 122, 680 P.2d 1081, the jury was not instructed to disregard sympathy for the defendant; nor was it instructed in the bare language of the 1978 law that it must impose a verdict of death if it found aggravating circumstances outweighed those in mitigation, since the trial court changed "shall" to "may." Defense counsel introduced substantial evidence in mitigation, and sought to invoke sympathy for the defendant. He argued on the basis of medical records and other evidence that defendant was a societal "misfit," afflicted with drug problems and "schizoid" tendencies, who had been ignored by society and had never received proper treatment. The jury was instructed that in determining the penalty it was to consider "all of the evidence which has been received during any part of the trial of this case."
The district attorney in his argument to the jury did not suggest that the considerations invoked by defense counsel were improper. Rather, he urged that no sympathy for defendant was warranted on the facts because his asserted "mental illness" and drug problems were both feigned. Referring to one of the medical records in evidence, the district attorney asserted: "It will show you that the defendant may have first appeared to be mentally ill, may deserve [221 Cal.Rptr. 902] [710 P.2d 981] some sympathy, compassion in mitigation, but he actually deserves none. So don't look at any one report, any isolated report. Look at all of them. It will take you some time, but the defendant deserves the time. The People of the State of California deserve the time. Don't rush to a quick verdict. Satisfy yourself that the defendant's mental problems are created by himself. He faked them himself, and about any problems he may have for drug usage." (Italics added.)
Nor did the district attorney suggest to the jury that the statutory "weighing" process called for any purely numerical or mechanical calculation. On the contrary, he acknowledged that if he were on the jury "if it was 50-50, or even 51 percent in favor of aggravation, it would be very hard to vote for death. You probably are going to require a lot more than 51 percent when you start weighing the factors in aggravation and mitigation." This acknowledgment was in accord with the trial court's instructions.
After hearing the evidence, the arguments, and the instructions, the jurors must have understood that they were to consider the facts and debate relating to defendant's entire character and record, rather than just the circumstances of the crime. They must have realized that it was their responsibility alone to determine the appropriate penalty. They did so, and I believe we are obligated to uphold their verdict.
MOSK and BUTLER *, JJ., concur.
BIRD, Chief Justice, concurring and dissenting.
I concur in the judgment. However, I reiterate the reservations regarding the standard of prejudice for penalty phase error which I set forth in my opinion in People v. Phillips (1985) 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423.
Moreover, the court later discussed at some length the possible prison terms that defendant might face if convicted on these counts and then addressed defendant directly: "So, if you go ahead with this sort of setup, you should expect the possibility of getting 12 years in custody, and, if you are lucky, it will be 10.... Do you understand that?" Defendant then replied that he did.