People v. Allen

BROUSSARD, J., Concurring and Dissenting.—

? ? I agree with the majority opinion insofar as it affirms the judgment of guilt and the finding of three of eleven special circumstances, but dissent from the affirmance of the penalty.

In People v. Brown (1985) 40 Cal.3d 512 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], the defendant contended that the 1978 California death penalty law enacted a “mandatory” death penalty and hence was unconstitutional. We rejected that contention. The law, we said, did not require the jury to add up the weights assigned to aggravating and mitigating factors, and to return a death verdict if the aggravating factors were the weightier. Instead, we determined, the weighing process serves to guide a normative judgment— whether death is the appropriate penalty in the case at hand. Here, the penalty jury was instructed in the language of the 1978 death penalty statute that "if you conclude that the aggravating evidence outweighs the mitigating evidence, you shall return a death sentence." As we observed in People v. Brown (1985) 40 Cal.3d 512 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], this language may lead a jury to believe that once it concludes that aggravating factors outweigh mitigating factors, it has no further decision to make; it is obligated to return a death verdict even if it does not believe that death is the appropriate penalty in the case before it. Whether the giving of such an instruction is reversible error, Brown said, must be determined by examination of the record of each case. ( 40 Cal.3d 512, 545, fn. 17 .)

Accordingly, the majority examine the record in the present case and discover that the prosecutor, addressing the jury at closing argument, made clear his view that the instruction confines the jury’s discretion. He told the jury that it would be instructed that " 'if you conclude that that aggravating *1289 evidence outweighs the mitigating evidence, you shall return a death sentence.’ Shall, not may, not might, not maybe. It is very explicit. If the aggravating evidence outweighs the mitigating evidence you shall return a verdict of death.” There is nothing ambiguous, nothing equivocal in this language, and no freedom for the jury to make the normative decision envisioned by Brown.

The majority, however, go on to find in other parts of the prosecutor’s argument phrases which to them suggest that he did not mean what he said in the language quoted above. They note that both at voir dire and in closing argument he reminded the jury that the law permitted a death penalty even though the defendant was not the actual killer. The majority then quote the prosecutor’s exhortation asking the jurors to “follow the law. Consider the evidence, render a just verdict, do your duty, follow your oath.” In an illogical leap, they assert that by “follow the law” he meant only the law relating to the culpability of persons who engage others to commit murder, not the law relating to the weighing of aggravating and mitigating factors; and even though he had explained to the jurors their duty to return a death verdict if aggravating evidence was the weightier, “do your duty” did not mean this duty.

The majority further note that the prosecutor argued that defendant “deserved” the death penalty, language which seems to recognize the power of the jury to make a normative decision. But neither judge nor prosecutor ever told the jury that it was their right to make such a decision. The prosecutor’s argument boils down to two assertions: Because the aggravating evidence outweighs the mitigating, it is your duty as jurors to return a verdict of death. And do not feel guilty about doing your duty, because defendant deserves that penalty. Nowhere is there anything to suggest that the jury could, consistently with its duty, return a life verdict on the ground that despite the relative weights of the factors death was not the appropriate penalty.

I conclude that the penalty jury in this case was not properly made aware of its responsibility to make the basic normative decision whether death was the appropriate penalty. The failure to so advise the jury is substantial, and reversible, error.

Bird, C. J., and Reynoso, J., concurred.