People v. Hamilton

BROUSSARD, J.

I concur in the judgment affirming defendant’s conviction for first degree murder and in the special circumstance findings. I dissent from the affirmance of the death penalty.

I.

The trial court’s instructions listed the 11 statutory factors of aggravation or mitigation. This statutory list of factors serves a constitutionally imposed function, that of establishing “a ‘meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.’ ” (Godfrey v. Georgia (1980) 446 U.S. 420, 427 [ 64 L.Ed.2d 398, 405-406 , 100 S.Ct. 1759 ], quoting Furman v. Georgia (1972) 408 U.S. 238, 313 [ 33 L.Ed.2d 346, 392 , 92 S.Ct. 2726 ] (White, J., cone.).) To treat absence of a factor which is virtually never present as grounds for imposing the death penalty would defeat that function. As we explained in People v. Rodriguez (1986) 42 Cal.3d 730, 788 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ], “the purpose of ‘aggravating’ and ‘mitigating’ factors is to assess the seriousness of a capital crime in relation to others of the same general character. The mere absence of a mitigating element may weigh against a finding that the instant offense is less serious than ‘normal,’ and thus especially deserving of mercy, but it does not suggest that the crime is more serious than ‘normal’ and thus especially deserving of death.” Consequently, prosecutors “should refrain from arguing to the jury that the very absence of a mitigating factor would constitute an aggravating one to be weighed against the defendant” (People v. Ghent (1987) 43 Cal.3d 739, 775 [ 239 Cal.Rptr. 82 , 739 P.2d 1250 ]), for such argument may mislead the jury into a mistaken belief that the case before them, because it lacks various statutory mitigating considerations, is a particularly aggravated murder especially deserving of the death penalty.

In the present case the prosecutor prepared a chart listing all of the statutory aggravating and mitigating factors, and based his closing argument entirely on that chart. He began by reminding the jurors that at voir dire he told them if they found guilt and special circumstances, “you’re going to have to weigh aggravating and mitigating circumstances to decide what the penalty was. We didn’t really go into the aggravating and mitigating circumstances. I made a chart. That’s where they are. [1f] But the law is this: if you conclude that the aggravating circumstances outweigh the miti *1189 gating circumstances, you shall impose the sentence of death. [fl] If, on the other hand, mitigating circumstances outweigh aggravating circumstances or the judge will tell you if they are evenly balanced, you shall impose a sentence of life imprisonment without the possibility of parole.”

The prosecutor then reviewed each of the factors. (Pen. Code, § 190.3.) He described the circumstances of the crime as an aggravating factor, but the absence of any prior violent acts as mitigating. He noted the defendant’s prior conviction for grand theft was an aggravating factor, albeit an insignificant one. 1 He classified all of the other factors except possibly factor (k) as aggravating, 2 pointing out to the jury the absence of extreme mental or emotional disturbance (factor (d)), the lack of victim participation or consent (factor (e)), the lack of moral justification for the crime (factor (f)), the absence of duress (factor (g)), the absence of evidence that defendant could not appreciate the criminality of his conduct (factor (h)), the maturity of the defendant (age 29 at the time of the crime) (factor (i)), and that defendant was not merely an accomplice (factor (j)).

The prosecutor then concluded his argument in the following language: “The last thing I’m going to say, ladies and gentlemen, is I want you to look at every one of these factors. I want you to balance them. There is [sic] eleven factors there. The best you can do is find two factors in mitigation and nine factors in aggravation. Your duty as judges at this time I would submit to you is to weigh the factors in aggravation with the factors in mitigation. There is no doubt the factors in aggravation outweighed those in mitigation by a substantial margin. And I would ask you to come back with a sentence of death because that’s the only just sentence for the heinous crime which this defendant committed. Thank you.”

In sum, the prosecutor erroneously told the jury that the absence of evidence of a mitigating factor rendered that factor aggravating. Employing *1190 this erroneous view of the law, he displayed to the jury a chart showing nine aggravating factors and two mitigating factors, when in fact there was only one strong factor in aggravation (the circumstances of the crime) and another arguably aggravating (a ten-year-old conviction for grand theft). The jurors took this chart into the jury room. Evidently it formed a focal point of their discussion, for midway through their deliberations they returned with a request for “the portion of the instruction [on which] the chart prepared by the District Attorney was prepared.” The trial court furnished the jury with a copy of the sentencing instructions previously given, instructions which did not inform the jurors that the chart was based on an erroneous interpretation of the law.

The majority recognize that the prosecutor’s argument was erroneous (see People v. Davenport (1985) 41 Cal.3d 247, 289-290 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ]) and was intended to mislead the jury, but “assume” (ante, pp. 1181-1182) that he was unsuccessful. We should assume, the majority say, that a jury which has been told to consider each factor only if “relevant” or “applicable” will understand how to evaluate the absence of particular mitigating factors. But as I explained in my concurring opinion in People v. Bonin (1988) 46 Cal.3d 659, 710-711 [ 250 Cal.Rptr. 687 , 758 P.2d 1217 ]: “This is nonsense. The vice of Davenport error is that it tells the jury that factors are applicable when as a matter of law they are not and that factors are aggravating when as a matter of law they are neutral or mitigating. Nothing in the judge’s instructions would dispel such erroneous impressions. The trial judge did not tell the jurors how to determine which factors were applicable, that many factors were inapplicable, or that absence of evidence to support a mitigating factor did not transform it into an applicable aggravating factor. Consequently the prosecutor’s erroneous argument would not strike the jury as inconsistent with the instructions. We cannot presume that the jurors rejected a plausible prosecution argument and instead adopted a view advanced by neither court nor counsel, [fl] Indeed the instructions to the jury to consider sentencing factors only ‘if applicable,’ and to follow the law as stated by the judge, are standard instructions given in all capital cases. To hold that such instructions give rise to a presumption that the jury rejected erroneous prosecution argument would give the prosecutor carte blanche to argue whatever he chose.”

Pointing to the aggravating circumstances of the crime and the weakness of the mitigating evidence, the majority conclude that there is no “reasonable possibility” (see People v. Brown (1988) 46 Cal.3d 432, 446-449 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ]) that the prosecutor’s argument affected the verdict. I object to this misuse of the “reasonable possibility” test. This is not the rare case of a murder so heinous that any juror (except one so opposed to capital punishment that he could not serve) would have to *1191 conclude that death was the appropriate punishment. The facts of this case would impel many juries to impose a death penalty, but we know of similar murders, committed in a more brutal fashion, in which defendants did not receive the death penalty. (See People v. Morris (1987) 192 Cal.App.3d 380 [ 237 Cal.Rptr. 402 ] [strangulation murder of sister-in-law for insurance money]; People v. Smith (1987) 188 Cal.App.3d 1495 [ 234 Cal.Rptr. 142 ] [hatchet murder of pregnant woman]; see also People v. Reynolds (1986) 186 Cal.App.3d 988 [ 233 Cal.Rptr. 596 ] [execution-style robbery murder by defendant with extensive criminal record]; People v. Almaraz (1985) 173 Cal.App.3d 304 [ 218 Cal.Rptr. 888 ] [execution-style robbery murder of one victim, attempted murder of another, by defendant with prior manslaughter conviction]; People v. Jackson (1985) 171 Cal.App.3d 609 [ 217 Cal.Rptr. 540 ] [strangulation murder after forcible oral copulation by defendant with eight prior felony convictions].) This is, in short, the kind of case in which the penalty verdict hangs in the balance, and in which it is reasonably possible that the prosecutor’s argument, telling the jury to put seven factors that do not belong there on the death side of the scale, improperly tilted the balance.

II.

Penal Code section 190.4, subdivision (e) provides that whenever the jury returns a death verdict, the defendant is deemed to have moved for modification of that verdict. The denial of the motion for modification is reviewable on the automatic appeal from the judgment.

In the present case the trial judge read into the record his reasons for denying the motion. Those reasons consisted entirely of his review, item by item, of the 11 statutory factors. He found one factor to be mitigating (the absence of prior violent criminal activity) and the other ten factors to be aggravating, and accordingly denied the motion.

In so reasoning, it is clear that the court erred as to at least seven factors. The absence of evidence of extreme mental or emotional disturbance (factor (d)); victim participation (factor (e)); a belief in moral justification (factor (f)); duress (factor (g)); diminished capacity (factor (h)); accomplice status (factor (j)); or circumstances which extenuate the gravity of the crime (factor (k)), cannot transform these factors into aggravating circumstances. (See discussion ante, pp. 1188-1189.)

The court’s ruling with respect to factor (k) deserves particular attention. That factor encompasses not only circumstances which extenuate the gravity of the crime, but also any other “ ‘aspect of [the] defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than *1192 death.’ ” (People v. Easley (1983) 34 Cal.3d 858, 878 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ].) Since it encompasses only extenuating matters, it cannot be aggravating. (People v. Boyd (1985) 38 Cal.3d 762, 775-776 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ].) The prosecutor, in arguing the motion to modify, did not contend otherwise. In its ruling on the motion to modify the verdict, however, the court stated that “[i]n carefully reviewing all of the evidence that was presented, the Court can find no circumstances which extenuate the gravity of the crime and the Court finds that this is a matter in aggravation. . . .” Thus not only did the court err in classifying factor (k) as aggravating, but its reasoning—and the absence of any mention in the ruling of defendant’s mitigating background evidence—creates a doubt whether the court considered mitigating evidence which did not, in its view, extenuate the gravity of the crime.

The majority, in finding the judge’s erroneous reasoning nonprejudicial, assert that the judge’s statement of decision “makes apparent that the court did not deem the issue of penalty to be a close one.” (Ante, pp. 1186-1187.) What the judge’s statement of decision reveals—and all it reveals—is that he thought there were ten aggravating factors and one mitigating factor. There is nothing in the record to show that if the judge had realized there were only two aggravating factors balanced by two mitigating factors, he would have viewed the issue of penalty the same way. I do not think it is proper to look at a ruling, which from beginning to end employs an erroneous process of reasoning, and say in effect that if the judge would go to such lengths to condemn the defendant we can infer that he would reach the same result regardless of the reasoning process. We should not assume, as the majority seem to do, that jurors and judges decide the question of penalty solely on the basis of “gut feelings,” and that their decisions are neither the product of, nor influenced by, any structured process for making those decisions.

All those arguments which I advanced to show that the prosecutor’s misleading argument compels reversal of the penalty verdict apply to require reversal of the ruling on the motion to modify that verdict. But even if we do not find reversible error in the penalty trial itself, we should still reverse the ruling on the motion to modify. First, as we have noted, the court’s erroneous reasoning on the motion to modify encompassed an additional factor, factor (k), which may not have been labeled as aggravating on the prosecutor’s chart. Second, in finding no prejudice from the prosecutor’s argument, the majority assumed that the jurors would recognize that the various neutral factors the prosecutor labeled as aggravating were really inapplicable. The judge’s reasoning in denying the motion to modify, however, is not concealed by the secrecy which veils jury deliberations; we know that he classified all neutral factors as aggravating, and that he based his *1193 decision entirely on that classification, without mention of mitigating evidence or discussion of the appropriateness of the death penalty. Finally, a finding of reversible error in the penalty trial compels a new trial which, because the new jury is unfamiliar with the facts of the crime, is frequently as extensive as the original trial. Such a finding on a motion to modify, in contrast, requires only a brief hearing, with minimal expense and delay.

III.

In summary, the prosecutor advanced an erroneous analysis of the aggravating and mitigating factors. The jury may have based its verdict on that analysis; the judge based his sentencing decision on it. If jury or judge had realized that in terms of the statutory factors this was not a particularly aggravated murder, but one in which the aggravating and mitigating factors were numerically balanced, I think it reasonably possible that defendant would not now be sentenced to die. We should not uphold the death penalty in this case.

Appellant’s petition for a rehearing was denied August 17, 1989, and the opinion was modified to read as printed above.

Compare People v. Brown (1985) 40 Cal.3d 512, 542 [ 220 Cal.Rptr. 637 , 709 P2d 440 ], footnote 13, where we noted that aggravation and mitigation must be considered in the context of a choice between the penalties of death or life imprisonment without possibility of parole. A prior record of only one nonviolent felony is a less serious record than that of most murderers.

Upon concluding his discussion of the factor (j), the prosecutor said, “And another circumstance in aggravation. In K, any other circumstances [sic] which extenuates the gravity of the crime even though it is not a legal excuse for the crime. . . .’’He went on to assert that defendant’s difficult childhood is “certainly not any justification for a crime as heinous as a crime that we have here today.” The majority assume that the prosecutor used the word “aggravation” to refer to factor (k), but assert that it was a slip of the tongue, because “it is clear he meant ‘mitigation.’ ” (Ante, p. 1182, fn. 25.)

It is not clear to me that the prosecutor meant to say “mitigation.” I do not believe we can confidently assert that the prosecutor meant “mitigation” when he said “aggravation,” or that the jury so understood him.