People v. Cox

MOSK, J.,

Concurring and Dissenting.—I concur in the judgment as to guilt and death eligibility. After review, I have found no error warranting reversal on those issues.

*702 I dissent, however, as to penalty. In my view, the trial court erred by denying defendant’s motion for new trial on that issue and by refusing his request for an evidentiary hearing relating thereto. Defendant had summoned Juror Whitfield to court; he should not have been prevented from calling her to the stand. As a result of the error, I would vacate the judgment in regard to penalty and remand the cause for a redetermination of the motion after a full and fair hearing on the question.

I also write separately to set forth my reasons for rejecting defendant’s claim that in its instructions the trial court erred by failing to label the penalty factors as “aggravating” or “mitigating.” In doing so, I follow my concurring opinion in People v. Gallego (1990) 52 Cal. 3d 115 [ 276 Cal.Rptr. 679 , 802 P.2d 169 ].

“Under the 1978 death penalty law, the determination of punishment turns on the personal moral culpability of the capital defendant. Culpability is assessed in accordance with specified factors of ‘aggravation’ and ‘mitigation’ as construed in the case law: (a) the circumstances of the crime; (b) prior violent criminal activity; (c) prior felony convictions; (d) extreme mental or emotional disturbance; (e) victim participation or consent; (f) reasonable belief in moral justification or extenuation; (g) extreme duress or substantial domination; (h) impairment through mental disease or defect or through intoxication; (i) age; (j) status as an accomplice and minor participant; and (k) any other extenuating fact.

“As used in the law, ‘aggravation’ means that which increases the personal moral culpability of the defendant above the level of blameworthiness that inheres in the capital offense. By contrast, ‘mitigation’ means that which reduces the defendant’s culpability below that level.

“It follows that, strictly speaking, none of the penalty factors is ‘aggravating’ or ‘mitigating.’ Rather, it is the circumstances they define that are properly characterized as such. The point is established by the very words of the law: ‘aggravating’ and ‘mitigating’ are always used to modify ‘circumstances,’ and never to modify ‘factors.’

“Therefore, I am of the opinion that the trial court did not err in its instructions by failing to label the penalty factors as ‘aggravating’ or ‘mitigating.’ It is, of course, virtually axiomatic that a court must correctly instruct on the law, and that it acts properly when it does so. Here, the court’s instructions were in conformity with the law. ‘Labeling’ would not have been.

*703 “I recognize that the trial court did not define ‘aggravation’ and ‘mitigation.’ To be sure, such a definition may provide a ‘ “helpful framework” for the jury’s consideration’ of the penalty to be imposed—and should therefore be given in the future to foster rational decisionmaking. In the general case, however, its omission is not error. ‘ “Aggravation” and “mitigation” are commonly understood terms. A trial court is not required to instruct on the meaning of terms that are commonly understood.’ In my view, the failure of the court to define the words in question was not erroneous here.

“I also recognize that the trial court did not identify which circumstances were ‘aggravating’ and which ‘mitigating.’ Like the definitions referred to above, identification may aid the jury and should generally be given in the future. But also like those definitions, its omission is usually not error. A jury should be able to identify the specified circumstances as ‘aggravating’ or ‘mitigating’ by itself. This is because their nature is ‘self-evident.’! 1 ]To my mind, the failure of the court to identify the circumstances was not erroneous in this case.” (People v. Gallego, supra, 52 Cal.3d at pp. 207-208 (conc, opn. of Mosk, J.), italics in original, citations omitted.)

Although the trial court did not err by failing to label the penalty factors as “aggravating” or “mitigating,” as noted above it did indeed do so by denying defendant’s motion for new trial on the issue of penalty and by refusing his request for an evidentiary hearing relating thereto. I would *704 therefore vacate the judgment as to penalty and remand the cause to the trial court for a redetermination of the motion after a full and fair hearing on the question.

Appellant’s petition for a rehearing was denied June 26, 1991.

At this point in my concurring opinion in People v. Gallego, supra, 52 Cal.3d 115 , the following footnote appears.

“Thus, it is manifest that the circumstances of the crime itself can be either aggravating or mitigating. Their character depends on the greater or lesser blameworthiness they reveal.

“The same is true of prior violent criminal activity. The presence of such activity suggests that the capital offense is the product more of the defendant’s basic character than of the accidents of his situation, whereas its absence suggests the opposite.

“Similarly, prior felony convictions can be either aggravating or mitigating. Like the presence or absence of prior violent criminal activity, the existence or nonexistence of previous convictions reflects on the relative contributions of character and situation. Further, the existence of such convictions reveals that the defendant had been taught, through the application of formal sanction, that criminal conduct was unacceptable—but had failed or refused to learn his lesson.

“The age of the defendant can also be either aggravating or mitigating. Age functions ‘as a metonym for any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty.’

“The existence of any of the following circumstances, however, is mitigating and mitigating only: extreme mental or emotional disturbance; victim participation or consent; reasonable belief in moral justification or extenuation; extreme duress or substantial domination; impairment through mental disease or defect or through intoxication; status as an accomplice and minor participant; and any other extenuating fact.

“By contrast, the nonexistence of any of the foregoing circumstances is not and cannot be aggravating. The absence of mitigation does not amount to the presence of aggravation.” (People v. Gallego, supra, 52 Cal.3d at pp. 208-209, fn. 1 (cone. opn. of Mosk, J.), citations omitted.)