discussing the necessity of defining and proving prior criminal violent acts which did not result in a conviction under § 190.3(b)
How later courts described this case
- discussing the necessity of defining and proving prior criminal violent acts which did not result in a conviction under § 190.3(b)
- most murder cases present the absence of the mitigating circumstances of moral justification and victim participation
- severe pain involved in virtually all murders and thus its presence does not distinguish among murders
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in People v. Crittenden
41 Cal.3d 247, 268 , superseded by statute on another ground as stated in People v. Crittenden (1994) 9 Cal.4th 83, 140, & fn. 14
Distinguished
Distinguished by People v. Robertson, 48 Cal. 3d 18 (1989)
) In People v. Rodriguez, supra, 42 Cal.3d at pages 789-790, we distinguished Davenport and held the prosecutor did not err in merely pointing out to the jury the inapplicability of a mitigating factor.
The opinion
MOSK, J.
I concur in the views of the majority on torture-murder and therefore join in the affirmance on the judgment of guilt. I dissent from reversal of the penalty.
The other offenses admitted in evidence involved serious acts of violence and were therefore relevant as aggravating factors to be considered by the jury in assessing penalty. (See my dis. opn. in People v. Robertson (1982) 33 Cal.3d 21, 63 [ 188 Cal.Rptr. 77 , 655 P.2d 77 ].) The other crimes need not be defined in instructions to the jury. After all, the jury should not become involved in extraneous law—i.e., legal definitions of prior crimes— but in the fact of violent conduct. Thus I find no error in the admission and consideration of other offenses.
Contrary to the majority holding, this case does not involve a Ramos (People v. Ramos (1984) 37 Cal.3d 136 [ 207 Cal.Rptr. 800 , 689 P.2d 430 ]) error. Ramos was concerned with an instruction to the jury to consider the Governor’s commutation power; no such instruction was given here. While the prosecutor’s argument to the jury may have been suggestive of the commutation power, this error was cured by an appropriate admonition by the court to the jury, and by the usual instruction that counsels’ arguments are not evidence and that only the court instructs on the applicable law.
I am not convinced that jurors are as naive as our opinions sometimes imply. In a capital case, the defense attorney attempts to stress the sympathetic factors that merit a verdict of life rather than death. Conversely the prosecutor attempts to stress the aggravating factors that justify forfeiting the defendant’s life. As I wrote in my Robertson dissent ( 33 Cal.3d at p. 64 ), “there is no reason to believe the jurors were unable to recognize attorney hyperbole when heard in the heat of courtroom battle.”
*295 I would affirm the judgment in its entirety.
BROUSSARD, J.—
I agree with the Chief Justice that the torture-murder special circumstance of the 1978 death penalty initiative (Pen. Code, § 190.2, subd. (a)(18)) cannot reasonably be construed to incorporate a requirement that the defendant intended to inflict torture. The drafters of the 1978 initiative deliberately removed the provision of the 1977 law requiring an intent to inflict torture. In an apparent attempt to draft a statute that would sweep in as many defendants as possible, they fashioned a special circumstance which by its terms applies to every intentional murder in which the victim suffers extreme physical pain, regardless of duration. Its language encompasses most murders in which the victim is not rendered instantly unconscious by the first shot or blow. Because the torture-murder special circumstance thus fails to single out those special, aggravated murders for which the death penalty can appropriately be imposed, it violates the Eighth Amendment to the United States Constitution. (See Carlos v. Superior Court (1983) 35 Cal.3d 131, 151 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ].) We reach too far if, to save this enactment, we read back into the law provisions which were deliberately eliminated by the drafters. I would therefore hold that the torture-murder special circumstance of the 1978 law is unconstitutional, and would reverse the finding of special circumstances.
In order to bring about a majority decision of this appeal, I concur in the discussion of the dispositive penalty phase issues set out in the plurality opinion of Justice Reynoso. I agree that the penalty judgment was flawed by instructional error: the failure to instruct that uncharged crimes must be proved beyond a reasonable doubt; the failure to direct the jury to consider and weigh defendant’s mitigating character and background evidence; the giving of an instruction which implied that jurors “shall” return a death verdict if aggravating circumstances outweigh mitigating circumstances even if they do not believe death is the appropriate penalty. I agree also that these errors, in combination, were prejudicial and require a new penalty trial. I take no position on the issues addressed in the plurality opinion to provide guidance on the retrial of the case.