People v. Velasquez

RICHARDSON, J., Concurring and Dissenting.

I concur in the majority opinion to the extent that it affirms the judgment of conviction of first degree murder with special circumstances. I respectfully dissent, however, from that portion of the opinion which reverses the sentence of death on the sole ground that one prospective juror, Maureen Rundee, was erroneously excused for cause. In my view, Mrs. Rundee was properly excluded from the jury panel on the basis of her statement on voir dire that she could not conceive of a crime so heinous as to justify the death penalty. As a unanimous verdict was required before a verdict of death could be imposed (former Pen. Code, § 190.4, subd. (b)), the People had a clear right to exclude Mrs. Rundee for cause.

Under well established principles, a prospective juror may be excluded from the panel if he makes it “unmistakably clear.. .that [he] would automatically vote against the imposition of capital punishment without regard to the evidence that might be developed at the trial of the case....” (Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21 [ 20 L.Ed.2d 776, 785 , 88 S.Ct. 1770 ], italics in original.) In the present case, Mrs. Rundee stated on voir dire that “I think there might be a hypothetical case in which a crime that was so heinous was committed that I would consider the death sentence. But I have not been able to think of a hypothetical of that nature.” (Italics added.) Thus, Mrs. Rundee could not imagine a crime so atrocious as to deserve the penalty of death. Such a response, I suggest, clearly disqualified her as a juror in a capital case under the foregoing Witherspoon test.

The majority contends, however, that Mrs. Rundee’s response was “equivocal,” for it demonstrated that she conceivably could impose death in a heinous case. The majority thereby mischaracterizes her answer: She merely admitted the hypothetical possibility that some unimaginable crime might someday, somewhere, occur which would warrant the extreme penalty. Such a response is wholly consistent with an unmistakably clear inability to impose the death penalty. Indeed, we *446 have so held in a case decided more recently than any of the earlier cases cited by the majority.

In People v. Floyd (1970) 1 Cal.3d 694, 724-725 [ 83 Cal.Rptr. 608 , 464 P.2d 64 ], several prospective jurors, including Ms. Rogers, had stated on voir dire that they could not vote for a verdict of death. Defense counsel then framed an extremely heinous hypothetical example in the hope of demonstrating some equivocation on the part of these prospective jurors which might qualify them to sit despite their strong feelings against the death penalty. The hypothetical situation involved a defendant who had killed 10 women and children, had threatened to kill again on release from prison, and had offered to disclose the location of his victims’ bodies for $100 each. Prospective juror Rogers, when asked if she could vote to impose death in such a case, replied that she did not “‘know about that type of person,’” that the death penalty was a question of “‘degree’” in such a case, that she would need to “‘get all the facts,’” and that “‘I don’t know if I would [impose death] or not. I really can’t say.'” (Italics added, id., at p. 725.)

We held in Floyd that Ms. Rogers was properly excused for cause, as the totality of her responses made it unmistakably clear that under no circumstances could she impose the death penalty. Ms. Rogers’ replies were certainly as “equivocal,” as Mrs. Rundee’s statements in the present case. Both prospective jurors expressed some reservations about the death penalty as applied to hypothetical examples involving extremely atrocious crimes. Indeed, the present case presents an even stronger example of a proper Witherspoon exclusion: In Floyd , Ms. Rogers acknowledged considerable difficulty with the hypothetical example posed by defense counsel. In the present case, Mrs. Rundee could not even imagine such a hypothetical!

Floyd reiterated a further rule which has specific application here. “‘Where a prospective juror gives conflicting answers to questions relevant to his impartiality, the trial court’s determination as to his state of mind is binding on an appellate court. [Citations.]’” (Ibid.) In the present case, the trial court carefully reviewed Mrs. Rundee’s remarks and concluded that “When she said she could not think of a hypothetical case so heinous to consider the death sentence, this was tantamount to saying she would automatically vote against the death sentence. . .. And, certainly, this was a case that could never, under any circumstances, be considered heinous.” Under Floyd , the foregoing characterization of Mrs. Rundee’s state of mind is binding on us. The *447 trial court, hearing the words, measuring the intonation of voice, and observing the facial expression, was in the better position to evaluate the depth of a prospective juror’s beliefs regarding the death penalty.

Finally, I note that the prosecutor in this case had used only 11 of his 36 peremptory challenges. He affirmatively stated during voir dire examination that, but for the trial court’s excuse of Mrs. Rundee for cause, he would have exercised one of his remaining peremptory challenges to excuse her. A reversal of the penalty under such circumstances unduly penalizes the prosecutor for failing to make what in effect would be a “protective” peremptory challenge and convincingly demonstrates the wholly technical nature of the majority’s holding in this case.

People v. Vaughn (1969) 71 Cal.2d 406, 412-413 [ 78 Cal.Rptr. 186 455 P.2d 122 ], relied upon by the majority herein, is inapposite. That case, decided prior to Floyd (and cited in the Floyd dissent) involved a prospective juror whose responses were ambiguous regarding her ability to impose death. For example, the potential juror stated at one point that she would have a “difficult” time deciding the penalty issue, that she was “not sure” if she could impose death, and that she was “afraid” that her feelings on the matter would prevent her from imposing the extreme penalty. Prospective juror Rundee expressed no such equivocation in the present case.

I would affirm the judgment.

Clark, J., and Manuel, J., concurred.