People v. Thompson

MOSK, J.—Concurring and Dissenting

I concur in affirming the judgment of guilt and the finding of special circumstances, but I dissent from the affirmance of the death penalty.

The majority appear to concede it was error for the court to admit evidence that while confined on the present charges defendant solicited Del Erate, a jailhouse informant, to kill Leitch, defendant’s associate in crime. While the solicitation under more convincing circumstances—such as corroboration by other witnesses—could have been a violation of Penal Code section 653f, subdivision (b), it should not have been introduced in this case for any purpose. Nevertheless the majority find the error to be “harmless under any standard.”

I do not share the confidence of the majority that this improper evidence had no effect on the jury weighing the issue of defendant’s life or death. It appears to me reasonably possible that a jury, when considering penalty, would give serious consideration to evidence tending to prove that while defendant was awaiting trial for one murder he was at the same time attempting to arrange still another murder. This damaging evidence might reasonably convince the jurors that sparing defendant’s life could well be dangerous to the lives of others, and thus tilt their decision toward the death penalty.

I do not minimize the seriousness of the crime of solicitation for murder—assuming that the uncorroborated word of a jailhouse informant is deemed credible, a dubious proposition at best. But the basic fact remains *145 that the alleged solicitation was an entirely separate offense that did not belong in evidence in this murder case.

The reasonable possibility of prejudice flowing from this error was enhanced when additional damaging evidence was admitted concerning a hare-brained scheme of defendant and Leitch to kill to obtain a boat, and then to kill Southeast Asian refugees whom they would purport to aid in seeking asylum. Little was done to consummate the alleged plan or to show that it was anything more than a drug-induced fantasy. Nevertheless this evidence, suggesting still more potential killing, would inevitably weigh in the minds of jurors considering whether or not the life of defendant was worthy of being spared.

I do not agree that the foregoing errors were merely efforts of the prosecutor to negate evidence in mitigation, as permitted by People v. Ghent (1987) 43 Cal.3d 739, 771 [ 239 Cal.Rptr. 82 , 739 P.2d 1250 ] (lack of remorse). In his penalty phase argument the prosecutor inquired: “Ask yourselves this: do animals in the jungle, do they kill as coldly and brutally and mercilessly as this man did? . . . Shall we ask ourselves if even in prison we can be sure that he won’t kill again.” (Italics added.) Since there was no evidence of prior murders, the prosecutor’s concern must have been aroused by the testimony of defendant’s plans for future murders, i.e., to kill again.

Indeed, in the penalty phase the prosecutor specifically urged the jury to consider this evidence as criminal activity under factor (b) of Penal Code section 190.3. Thus, in discussing each of the factors listed in that section and in CALJIC No. 8.84.1, he quoted the language of factor (b) and then stated: “The only other evidence that we have presented in the guilt phase about other acts of violence would be the defendant’s plans to kill anyone who got in his way or the testimony we’ve heard from Mr. Del Frate about the defendant’s plan to kill the co-defendant, Mr. Leitch.” The prosecution later conceded, in connection with the new trial motion, that this was error.

It is true the majority in People v. Rodriguez (1986) 42 Cal.3d 730, 791-792 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ], held that when mitigating evidence of good character is offered, the prosecution is entitled to rebut that evidence by showing “a more balanced picture of his personality.” (Ibid.) I do not quarrel with that basic principle, subject to some limitations. However in this case the prosecutor did not offer the evidence of schemes for other killings in rebuttal; he presented it in the earlier phases of the trial. In fact, he put on no evidence in the penalty phase. Thus it would be fatuous to now claim that the tales of potential killings were merely rebuttal to good-character evidence offered by defendant in the penalty phase.

*146 I have some problems with the guilt phase testimony claiming the deceased expressed fear of defendant. (See generally, People v. Hamilton (1961) 55 Cal.2d 881 [ 13 Cal.Rptr. 649 , 362 P.2d 473 ].) An account of a voice from the grave is easily reconstructed with 20/20 hindsight and virtually impossible to disprove. In this instance, however, relating the purported concern of the victim was not prejudicial in light of cross-examination of the witness Tracy Leitch that substantially altered her original story.

Therefore I concur in affirmance of the judgment of guilt and in the finding of special circumstances, but I would reverse the penalty judgment. Since this offense was committed nearly seven years ago and a retrial will be difficult, the ends of justice may be served if the parties were to stipulate to a sentence of life without possibility of parole.

Broussard, J., concurred.

Appellant’s petition for a rehearing was denied June 23, 1988, and the opinion was modified to read as printed above. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.