disapproving of Judge Fitzgerald’s remarks which could have been interpreted negatively against a party or attorney but ruling that the remarks “[fell] short of the intemperate or biased judicial conduct which warrants reversal” and noting that “[w]ell-conceived judicial humor can be a welcome relief during a long, tense trial”
How later courts described this case
- disapproving of Judge Fitzgerald’s remarks which could have been interpreted negatively against a party or attorney but ruling that the remarks “[fell] short of the intemperate or biased judicial conduct which warrants reversal” and noting that “[w]ell-conceived judicial humor can be a welcome relief during a long, tense trial”
- “[S]uch an opinion has no ‘tendency in reason’ to disprove the veracity of the statements.” (Citation omitted.)
- cross-examination of defendant’s witness solely to elicit facts that would lead jury to conclude that he did not previously believe another witness’ statements was irrelevant
- “Well-conceived judicial humor can be a welcome relief during a long, tense trial. Obviously, however, the court should refrain from joking remarks which the jury might interpret as denigrating a particular party or his attorney.”
Written by the judges who cited it.
The opinion
BROUSSARD, J.
I concur in the judgment. I disagree, however, with language in the majority opinion which declares, contrary to the views we expressed in People v. Harris (1984) 36 Cal.3d 36, 65 [ 201 Cal.Rptr. 782 , 679 P.2d 433 ], that two felonies arising from an indivisible course of conduct may be weighed as separate aggravating circumstances by the penalty jury.
In past cases this court has taken pains to construe the California death penalty statutes to avoid duplicative or overlapping aggravating factors because, as we said in Harris , the use of such factors “artificially inflates the particular circumstances of the crime and strays from the [United States Supreme Court’s] mandate that the state ‘tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.’ (Godfrey v. Georgia (1980) 446 U.S. 420, at p.428 [ 64 L.Ed.2d 398, at p. 406 , 100 S.Ct. 1759 ].) The United States Supreme Court requires that the capital-sentencing procedure must be one that ‘guides and focuses the jury’s objective consideration of the particular circumstances of the individual offense and the individual offender before it can impose a sentence of death.’ (Jurek v. Texas (1976) 428 U.S. 262, at pp. 273-274 [ 49 L.Ed.2d 929 , 96 S.Ct. 2950 ].) That requirement is not met in a system where the jury considers the same act or an indivisible course of conduct to be more than one special circumstance.” ( 36 Cal.3d at p. 63 .)
*773 For this reason the plurality opinion in Harris held that when a robbery and burglary arise out of an indivisible course of conduct, such that they could not be punished separately under Penal Code section 654, the two felonies should be considered as a single aggravating circumstance by the penalty jury. (36 Cal.3d at pp. 64-65.) Following the same policy, a majority of this court in People v. Bigelow (1984) 37 Cal.3d 731, 751 [ 209 Cal.Rptr. 328 , 691 P.2d 994 ], narrowly construed the special circumstance of murder for financial gain to distinguish it from the special circumstances of felony murder. The recent decisions in People v. Howard (1988) 44 Cal.3d 375, 410 [ 243 Cal.Rptr. 842 , 749 P.2d 279 ] and People v. Kimble (1988) 44 Cal.3d 480, 506 [ 244 Cal.Rptr. 148 , 749 P.2d 803 ] continue this policy. Howard adopts a broad view of the financial-gain special circumstances generally, but retains the narrower Bigelow construction (supra, 37 Cal.3d 731 ) to prevent duplicative aggravating circumstances whenever a defendant’s conduct could otherwise be considered both felony murder and murder for financial gain. Kimble , following the reasoning of the plurality opinion in Harris, supra, 36 Cal.3d 36 , construes factor (b) narrowly in order to “avoid the problem of artificially inflating aggravating circumstances.” (Ante, pp. 505-506.) The majority opinion makes no reference to this established policy of construing the 1977 and 1978 death penalty statutes to avoid overlapping or duplicative factors.
The majority reject the guidance of Penal Code section 654, which bars multiple punishment for an indivisible course of conduct, on the ground that Penal Code section 190.3 is a more specific statute. I question this description; it is section 654, not 190.3, which specifically discusses the punishment of acts that violate more than one statute. In any case, a specific statute is assumed to operate in the context of the more general statute, and they are to be read together and harmonized. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489 [ 134 Cal.Rptr. 630 , 556 P.2d 1081 ].) The rule that a special statute controls over a more general one and constitutes an exception to the general rule only applies when the two statutes refer to the same subject matter and are inconsistent. (People v. Gilbert (1969) 1 Cal.3d 475, 479 [ 82 Cal.Rptr. 724 , 462 P.2d 580 ]; In re Williamson (1954) 43 Cal.2d 651, 654 [ 276 P.2d 593 ]; Pierce v. Riley (1937) 21 Cal.App.2d 513, 518 [ 70 P.2d 206 ]; Cohn v. Isensee (1920) 45 Cal.App. 531, 536 [ 188 P. 279 ].) As always in statutory construction, the basic question is whether the Legislature intended the special statute to be an exception to the general rule. (See Code Civ. Proc., § 1859; People v. Moroney (1944) 24 Cal.2d 638, 643-644 [ 150 P.2d 888 ]; People v. Hopkins (1978) 78 Cal.App.3d 316, 319 [ 142 Cal.Rptr. 572 ].) I see absolutely no indication that the drafters of Penal Code section 190.3 intended to permit enhanced punishment for an indivisible course of conduct which happens to produce several special circumstance findings.
*774 The majority assert that reconciliation of Penal Code sections 654 and 190.3 would frustrate the intent of the Legislature and voters to protect separate societal interests in the safety of the person and the safety of property. “Robbery involves an assaultive invasion of personal integrity; burglary an invasion of the sanctity of the home.” (Maj. opn. ante at p. 768.) By enacting Penal Code section 654, however, the Legislature determined that a burglary and robbery which are part of an indivisible transaction can be punished only once. (See People v. Smith (1985) 163 Cal.App.3d 908, 912 [ 210 Cal.Rptr. 43 ], and cases cited; People v. Lee (1980) 110 Cal.App.3d 774, 784-785 [ 168 Cal.Rptr. 231 ]; People v. Garrison (1966) 246 Cal.App.2d 343, 356-357 , cert. den. 389 U.S. 915 [ 54 Cal.Rptr. 731 ].) In other words, when Penal Code section 190.3 was enacted, the Legislature had already determined that the separate societal interests protected by the burglary and robbery statutes do not warrant increased punishment when the two crimes are part of an indivisible transaction. The majority cite no reason nor legislative history to show that the voters entertained a different view when they enacted Penal Code section 190.3.
In summary, I believe we should adhere to the policy of prior decisions and interpret Penal Code section 190.3 to avoid duplicative aggravating factors derived from a single, indivisible course of conduct. I therefore conclude that the trial court erred in not instructing the jury that the special circumstance of felony murder based on robbery and that of felony murder based on burglary, if derived from an indivisible course of conduct, could not each be considered as distinct aggravating factors. But since there appears to be no reasonable possibility that this error affected the result, I join in the affirmance of the penalty verdict.
Appellant’s petition for a rehearing was denied May 26, 1988, and the opinion was modified to read as printed above.