rejecting petitioner’s reliance on Frank and holding that, as here, “there was not a ‘technical insufficiency in the form of an objection’; there was no objection at all”
How later courts described this case
- rejecting petitioner’s reliance on Frank and holding that, as here, “there was not a ‘technical insufficiency in the form of an objection’; there was no objection at all”
- conc. & dis. opn. of Mosk, J.
Written by the judges who cited it.
The opinion
MOSK, J.
I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance findings.
I dissent, however, from the affirmance of the judgment as to penalty. I agree with the majority that the state may require defendant to pay, and pay dearly, for the murder of which he stands convicted. But as I shall explain, I cannot agree that the state may constitutionally require defendant to pay for the crime with his life. Accordingly, I would modify the judgment by reducing the penalty from death to life imprisonment without possibility of parole and would affirm the judgment as so modified.
The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendant’s “personal responsibility and moral guilt.” (Enmund v. Florida (1982) 458 U.S. 782, 801 [ 73 L.Ed.2d 1140, 1154 , 102 S.Ct. 3368 ]; see generally Solem v. Helm (1983) 463 U.S. 277, 284-295 [ 77 L.Ed.2d 637, 645-653 , 103 S.Ct. 3001 ].) Article I, section 17 of the California Constitution separately and independently lays down the same prohibition. (People v. Dillon (1983) 34 Cal.3d 441, 479-482 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ].)
In light of the evidence adduced at the penalty phase, I am compelled to conclude that the sentence of death is disproportionate to defendant’s “personal responsibility and moral guilt.” (Enmund v. Florida, supra, 458 U.S. at p. 801 [ 73 L.Ed.2d at p. 1154 ].) To be sure, the prosecution and defense experts disagreed on several points. But they were all in substantial agreement on the following matters: defendant had experienced significant and irreversible organic brain damage as a young child; he had a long and continuous history of mental illness; he suffered from a form of psychosis termed chronic schizophrenia; and he was in fact mentally ill on the very day of the murder. As the majority observes, defense psychiatrist John Stalberg did indeed agree with the opinion of prosecution psychiatrist Kaushal Sharma, to the effect that “[defendant’s] mental illness was not of such a nature and degree to as to [sic] negate or diminish his criminal culpability” for purposes of the defense of insanity or diminished capacity. But Dr. Stalberg also testified—without contradiction—that “Mr. Poggi has the judgment and control of a 12 year old.” On this record, I conclude that defendant cannot escape punishment for his act through any so-called “mental” defense. But I also conclude that his personal moral culpability is not sufficiently grave as to allow the state to inflict on him the ultimate sanction.
*350 For the foregoing reasons, I would modify the judgment by reducing the penalty from death to life imprisonment without possibility of parole and would affirm the judgment as so modified. (See People v. Frierson (1979) 25 Cal.3d 142, 182-183 [ 158 Cal.Rptr. 281 , 599 P.2d 587 ] (plur. opn.); see generally Pen. Code, §§ 1181, subd. 7, 1260.)
Appellant’s petition for a rehearing was denied June 30, 1988, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.