People v. Danielson

MOSK, J., Concurring and Dissenting.

I agree with Justice Kennard’s concurring and dissenting opinion: the convictions and special circumstance findings must be sustained, but the sentence of death must be set aside because the trial court erroneously permitted the prosecutor to ask defendant at the penalty phase, “And . . . what do you think your just punishment should be?”

Consistency, thou art a jewel—but to some prosecutors intent on obtaining a verdict of death, the jewel is rare indeed.

In People v. Whitt (1990) 51 Cal.3d 620 [ 274 Cal.Rptr. 252 , 798 P.2d 849 ], defense counsel asked Whitt in the penalty phase of his trial: “And do you *732 want to live?” and “Why do you deserve to live?” The trial court sustained prosecution objections to the questions on grounds that the answers sought were irrelevant and self-serving. Irrelevant? Life or death is the ultimate issue. Self-serving? That is the very purpose of mitigating evidence. Unsurprisingly, the jury fixed the penalty at death.

The trial court’s rulings barring Whitt’s response were clearly erroneous under Skipper v. South Carolina (1986) 476 U.S. 1 [ 90 L.Ed.2d 1 , 106 S.Ct. 1669 ], and clearly prejudicial under Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].

A bare majority of this court did not, or would not, recognize that fact. While they reluctantly conceded the trial court erred, and cautioned judges in future cases “against imposing similar restrictions on a capital defendant’s constitutionally protected right to give relevant penalty phase testimony” (People v. Whitt, supra, 51 Cal.3d at p. 647, fn. 17 ), they nevertheless labeled the error “harmless” and hastened Whitt along his way to the execution chamber.

In effect, the majority in Whitt told prosecutors that they can prevent a defendant’s testimony for life at no risk. For their part, the majority in this case tell them that they can elicit a defendant’s testimony for death with impunity. Thus, to prosecutors the prevailing rule appears to be: If a defendant wants to live, his mouth may be sealed; by contrast, if he wants to die, he may speak freely. This is an unconscionable double standard.

I have no doubt that defendant’s response to the prosecutor’s improper question—“If I were one of the 12 jurors, I would vote for the death penalty”—must have had an adverse effect on the jury as it deliberated whether defendant was to live or die, and cannot be dismissed as merely “harmless.” It does not require a crystal ball to sense some, perhaps all, of the jurors thinking or saying: “If defendant himself would vote for death, why should we do otherwise?”

For the foregoing reasons, I would set aside the sentence of death.