People v. Hovey

MOSK, J.

I concur in the judgment.

Nevertheless I am concerned at what point a series of errors, analytically deemed harmless individually, become prejudicial when evaluated collectively. On this general subject there appears to be a conflict between mathematics and literature. On the one hand, five times zero equals zero. On the other hand, as Plutarch pointed out nearly 20 centuries ago in Of the Training of Children, “water continually dropping will wear hard rocks hollow.”

The majority concede at least five prosecutorial errors: admission of the Michele G. incident (ante, p. 569); Griffin violation ( 380 U.S. 609 ) (ante, p. 572); misuse of victim’s photograph (ante, p. 576); comment on defendant’s silence (ante, p. 580) and potential violation of Booth v. Maryland (1987) 482 U.S. 496 [ 96 L.Ed.2d 440 , 107 S.Ct. 2529 ]).

Like the majority I can rationalize the result in all the foregoing; however the last error causes me the greatest concern. The effect on the family of the deceased will inevitably and understandably have a devastating impact on a jury considering the defendant’s fate. As Justice Powell wrote for the United States Supreme Court in Booth , “While the full range of foreseeable consequences of a defendant’s actions may be relevant in other criminal and civil contexts, we cannot agree that it is relevant in the unique circumstance of a capital sentencing hearing.” (482 U.S. at p._ [ 96 L.Ed.2d at p. 449 ].) *587 In reversing a conviction in a case in which a victim impact statement was given pursuant to state law, he concluded that “We thus reject the contention that the presence or absence of emotional distress of the victim’s family, or the victim’s personal characteristics, are proper sentencing considerations in a capital case.” (482 U.S. at p._ [ 96 L.Ed.2d at p. 451 ].) Of course, noted Justice Powell, one “can understand the grief and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.” ( 482 U.S. at p. _ [ 96 L.Ed.2d at p. 452 ].)

Three years earlier our Court of Appeal reached a similar conclusion in People v. Levitt (1984) 156 Cal.App.3d 500, 516-517 [ 203 Cal.Rptr. 276 ]. In commenting on the bereavement of the victim’s family, the court declared: “The purpose of sentencing is to punish defendants in accordance with their level of culpability. We think it obvious that a defendant’s level of culpability depends not on fortuitous circumstances such as the composition of his victim’s family, but on circumstances over which he has control . . . the fact that a victim’s family is irredeemably bereaved can be attributable to no act of will of the defendant other than his commission of homicide in the first place. Such bereavement is relevant to damages in a civil action, but it has no relationship to the proper purposes of sentencing in a criminal case.”

The instant judgment, pre-Booth, supra, 482 U.S. 496 [ 96 L.Ed.2d 440 ], and Levitt, supra, 156 Cal.App.3d 500 , can be saved only because there was no evidence offered relating to the victim’s family, only fleeting comment by the prosecutor in her closing presentation. And there was no objection made by defense counsel. Under these circumstances, the potentially prejudicial impact was minimal. However, I trust that the lesson of Booth and Levitt will guide counsel in future cases, not only as to presentation of evidence but also as to appropriate jury argument.