People v. Ghent

MOSK, J., Concurring.

I agree with most of the opinion of the majority, but write separately to note some reservations.

The prosecutor argued to the jury that defendant’s age could be considered an aggravating factor. In effect he strongly implied that a man 30 years of age should be held to a higher standard of conduct than a 17-year-old boy.

Despite some critical dictum by the majority in People v. Rodriguez (1986) 42 Cal.3d 730, 788 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ], I am convinced that age is entirely neutral. It may be considered by the jury “if relevant” (former Pen. Code, § 190.3, subd. (h)). How it is to be evaluated may be argued by opposing counsel.

Thus the argument by the prosecutor in this case was perfectly proper. He was entitled to urge that the defendant’s maturity be deemed an aggravating factor. Conversely, defense counsel could have insisted that the defendant’s age reflected more potentially favorable qualities than might be evidenced by an impulsive youth and therefore should be deemed a mitigating factor.

In short, the advantages and disadvantages of age, young or old, cannot be rigidly categorized. They are entirely in the eye of the beholder.

I must also indicate reservations with the majority’s somewhat cursory treatment of international treaties to which the United States is a signatory. From the earliest days of this republic, our international obligations have been considered part of controlling common law. Chief Justice John Marshall declared in 1815 that courts are “bound by the law of nations, which is part of the law of the land.” (The Nereide (1815) 13 U.S. (9 Cranch) 388 [ 3 *781 L.Ed. 769 ].) As recently as March 9, 1987, the United States Supreme Court discussed at length and relied on the United Nations Protocol Relating to the Status of Refugees in the case of Immigration and Naturalization Service v. Cardozo-Fonseca (1987) 480 U.S. _ [ 94 L.Ed.2d 434 , 107 S.Ct. 1207 ], The court held that the term “refugee” was to be “interpreted in conformance with the Protocol’s definition.”

The Second Circuit relied primarily on the Universal Declaration of Human Rights in its moving opinion in Filartiga v. Pena-Irala (1980) 630 F.2d 876 . (Also see Kenji Namba v. McCourt (Ore. 1949) 204 P.2d 569 ; Perez v. Sharp (1948) 32 Cal.2d 711, 732 [ 198 P.2d 17 ] (conc. opn. of Carter, J.); Pierburg GmbH & Co. KG v. Superior Court (1982) 137 Cal.App.3d 238 [ 186 Cal.Rptr. 876 ]; Volkswagenwerk Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503 [ 109 Cal.Rptr. 219 ]; McMullen v. INS (1981) 658 F.2d 1312 .)

Nevertheless, I cannot agree with defendant that our international obligations, at least up to the present time, compel elimination of capital punishment. The International Covenant on Civil and Political Rights, signed by the United States and 71 other nations and effective since March 23, 1966, specifically recognizes the existence of the death penalty. Part III, article 6(2), of that treaty declares: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. ...”

The several instructional errors committed by the trial court are troublesome, but I reluctantly conclude with the majority that they did not result in a miscarriage of justice. (Cal. Const., art. VI, § 13.)