stating that prosecutorial references to a 12 non-testifying defendant’s demeanor or behavior in the courtroom are improper 13 because demeanor evidence (1) is relevant only as to the credibility of a witness, (2) 14 infringes on a defendant’s right not to testify, and (3) “violates the rule that criminal 15 conduct cannot be inferred from bad character”
How later courts described this case
- stating that prosecutorial references to a 12 non-testifying defendant’s demeanor or behavior in the courtroom are improper 13 because demeanor evidence (1) is relevant only as to the credibility of a witness, (2) 14 infringes on a defendant’s right not to testify, and (3) “violates the rule that criminal 15 conduct cannot be inferred from bad character”
- stating that prosecutorial references to a non-testifying defendant's demeanor or behavior in the courtroom are improper because demeanor evidence (1) is relevant only as to the credibility of a witness, (2) infringes on a defendant's right not to testify, and (3) "violates the rule that criminal conduct cannot be inferred from bad character"
- rejecting challenge that accomplice as a matter of law instruction directed jury to find the defendant acted with witness
- “[P]rosecutor’s references to defendant’s facial demeanor . . . made at a penalty trial in which defendant had placed his own character in issue as a mitigating factor . . . [were] proper . . . .”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by People v. Diaz, 60 Cal. 4th 1176 (2015)
45 Cal.3d 147 (Heishman), abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190
The opinion
MOSK, J.,
I concur in the affirmance of the judgment as to guilt and in the sustaining of the special circumstance finding.
I dissent, however, from the affirmance of the judgment as to penalty. I agree with the majority that the trial judge erred when he failed to state his reasons for denying defendant’s automatic application for modification of the verdict of death under Penal Code section 190.4, subdivision (e) (hereafter section 190.4(e)).
But I cannot agree that this error can be held harmless. In People v. Rodriguez (1986) 42 Cal.3d 730 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ], we concluded that “failure to specify reasons for denying modification sufficient ‘to assure thoughtful and effective appellate review[ ]’ ” was fatal. (Id. at p. 794.) The reason is plain: we cannot undertake the kind of review the Constitution requires when a man’s life is at stake if all we can look to in the record is a void.
In holding that the error here is subject to harmless-error analysis, the majority rely on People v. Chi Ko Wong (1976) 18 Cal.3d 698 [ 135 Cal.Rptr. 392 , 557 P.2d 976 ]. Their reliance, however, is misplaced. In Chi Ko Wong—which as the majority themselves recognize was not a capital case— the court did not consider, less still decide, whether failure to state reasons for denying a section 190.4(e) application could be deemed harmless. It is settled, of course, that a case is not authority for a proposition not considered. (E.g., People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [ 82 Cal.Rptr. 724 , 462 P.2d 580 ]; In re Tartar (1959) 52 Cal.2d 250, 258 [ 339 P.2d 553 ].) In any event, to the extent that Chi Ko Wong can be read to support the majority’s position, in light of Rodriguez it is no longer good law.
Further, I do not believe this court can somehow “cure” the error by attempting to redetermine the application itself. Section 190.4(e) provides in relevant part as follows. “In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances . . . , and shall make a determination as to *206 whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings. [11] The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk’s minutes.” (Italics added.)
On its face, section 190.4(e) plainly gives the determination of an application for modification of the verdict of death to the trial judge and the trial judge alone—not to any judge or to the trial court as a body, and certainly not to an appellate judge or an appellate court. The reason for this is evident: the Constitution imposes a requirement of heightened reliability for a verdict of death; only the trial judge has had the opportunity to observe the demeanor of the witnesses and of the defendant himself; therefore, it is only that judge who can make a constitutionally adequate determination as to whether the defendant should be sentenced to death in accordance with the verdict.
In this case, the trial judge is deceased. Therefore, we have only two valid alternatives. The first is to exercise our authority under Penal Code sections 1181, subdivision 7, and 1260, and reduce the sentence from death to life imprisonment without possibility of parole while at the same time aflürming the judgment of guilt. (E.g., People v. Lucero (1988) 44 Cal.3d 1006, 1034-1036 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] (conc. & dis. opn. of Mosk, J.) [concluding in a capital case that the judgment of guilt should be affirmed but that the sentence of death should be reduced to life imprisonment]; cf. People v. Jackson (1955) 44 Cal.2d 511 [ 282 P.2d 898 ] [reversing a judgment with directions to the trial court to reduce a death penalty to life imprisonment in a case in which serious errors were committed but the overwhelming weight of credible evidence established guilt].) In the unusual circumstances presented by this case, such a procedure would serve the ends of justice and also avoid the necessity of conducting another penalty trial more than eight years after commission of the crime.
The second alternative is to reverse the judgment as to penalty and to return the matter for a new penalty trial. If, after more than eight years, the prosecution experiences difficulty in producing witnesses and evidence, it may elect to stipulate to life imprisonment without possibility of parole as the punishment for defendant.
For the reasons stated above, I cannot join in the majority’s conclusion that the trial judge’s failure to state his reasons for denying defendant’s *207 section 190.4(e) application can be deemed harmless error. Accordingly, I dissent from the affirmance of the judgment as to penalty.
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.