People v. Kimble

MOSK, J.

I concur in the judgment insofar as it affirms defendant’s conviction. I dissent, however, insofar as it affirms the imposition of the penalty of death.

I agree with the majority that the judgment should be affirmed as to guilt: in my view, there occurred no prejudicial error bearing on that issue. I also agree that defendant is eligible for the death penalty: one of the multiple-murder special-circumstance findings is unquestionably valid. But I cannot agree that the judgment should be affirmed as to penalty: for the reasons stated in Justice Broussard’s concurring and dissenting opinion, I believe that errors were committed at the penalty phase and that those errors resulted in a “miscarriage of justice” within the meaning of article VI, section' 13, of the California Constitution.

I write separately, however, to express my disagreement with the majority’s conclusion that the felony-murder special-circumstance findings in this case are valid.

To begin with, advancement of an independent felonious purpose is plainly an element of the felony-murder special circumstance and, as such, should have been instructed on in connection with each of the felony-murder special circumstances alleged in this case. That point was established by this court in People v. Green (1980) 27 Cal.3d 1 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ], and has been recognized, for example, by the Committee on Standard Jury Instructions—Criminal. In Green , the court squarely held that the felony-murder special circumstance must be construed to require a finding of independent felonious purpose. (Id. at pp. 61-62.) Pursuant to Green , CALJIC No. 8.81.17 requires the jury to find “That the murder was committed in order to carry out or advance the commission of the [underlying felony] or to facilitate the escape therefrom or to avoid detection.” Thus, in light of the Green holding, the majority’s attempt to present advancement of an independent felonious purpose as merely a kind of nonessential “clarifying” or “amplifying” gloss is unsuccessful.

Further, I believe that failure to instruct on the independent-felonious-purpose element is not subject to general harmless error analysis, and that on this record the error cannot be held nonprejudicial. My reasons are as follows.

In People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ], the court held that failure to instruct on an element of a special circumstance was in general automatically reversible. (Id. at p. 554.) At the *518 same time the court recognized that there appeared to be certain exceptions to this rule. One was that the erroneous instruction was given in connection with a special circumstance allegation that was not found true, and had no bearing on the special circumstance that was found true—the so-called “acquittal exception.” (Id. at pp. 554-555.) Another exception was that the defendant conceded the issue of intent—the so-called “concession exception.” (Id. at p. 555.) Yet another was that the issue was necessarily resolved adversely to the defendant under other, properly given instructions—the so-called “Sedeño exception” (People v. Sedeno (1974) 10 Cal.3d 703 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ]). (People v. Garcia, supra, 36 Cal.3d at p. 555 .) The court also tentatively recognized as a fourth exception that intent was established as a matter of law and there was no contrary evidence worthy of consideration—the so-called “Cantrell-Thomton exception” (People v. Cantrell (1973) 8 Cal.3d 672 [ 105 Cal.Rptr. 792 , 504 P.2d 1256 ]; People v. Thornton (1974) 11 Cal.3d 738 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ]). (People v. Garcia, supra, 36 Cal.3d at pp. 555-557.)

In so holding the Garcia court applied principles enunciated by the United States Supreme Court in a line of decisions including Sandstrom v. Montana (1979) 442 U.S. 510 [ 61 L.Ed.2d 39 , 99 S.Ct. 2450 ], and Connecticut v. Johnson (1983) 460 U.S. 73 [ 74 L.Ed.2d 823 , 103 S.Ct. 969 ], which bear on the question whether the due process clause is offended by presumptions, burdens of proof, and other procedural mechanisms that allow the state to establish an element of a crime with something less than proof beyond a reasonable doubt.

The Garcia court commenced its analysis with the observation that just as a murder instruction creating a presumption of malice—so-called “Sandstrom error”—violates due process, so too does the failure to instruct on an element and the consequent removal of the issue from the jury. (36 Cal.3d at pp. 550-551.) The court explained: Although Sandstrom, supra, 442 U.S. 510 , Connecticut v. Johnson, supra, 460 U.S. 73 , et alia, examined “presumptions, burdens of proof, and other procedural analogs to a directed verdict,” their underlying reasoning “would invalidate any instruction or failure to instruct which would permit the state to circumvent the requirement that it prove every fact necessary for conviction beyond a reasonable doubt. [Citation.] Thus a failure to instruct on the element of intent, because it would permit the jury to find guilt without proof of intent beyond a reasonable doubt, would constitute a denial of due process.” ( 36 Cal.3d at p. 551 .)

Next, although plainly recognizing that a special circumstance bears, on penalty, the Garcia court analogized a special circumstance and its elements to a crime and its elements—and appears to have implied that as a matter of *519 state law the former were similar in nature and function to the latter. (Id. at p. 552.)

The court acknowledged that technically “a special circumstance is not a ‘crime,’ and an element of a special circumstance thus is not an ‘element of a crime.’ ” (Ibid.) It added, however, that there was a “resemblance between a special circumstance proceeding and a trial to determine guilt. ... ‘In the California scheme the special circumstance . . . is a fact or set of facts, found beyond reasonable doubt by a unanimous verdict [citation], which changes the crime from one punishable by imprisonment of 25 years to life to one which must be punished either by death or life imprisonment without possibility of parole ....’” (Ibid.) As the court suggested, just as the defendant has a right to a jury determination of his guilt or innocence of a crime under the federal Constitution, so too does he have what may variously be termed a right to, a liberty interest in, or an entitlement to, a jury determination of the existence of a special circumstance under state law (Pen. Code, § 190.4, subd. (a)).

The court concluded: “In view of the importance of a special circumstance finding, we do not believe the courts can extend a defendant less protection with regard to the elements of a special circumstance than for the elements of a criminal charge. If failure to instruct on the element of a crime is a denial of federal due process, the same consequence should attend failure to instruct on the element of a special circumstance.” (People v. Garcia, supra, 36 Cal.3d at p. 552 .)

Finally, the Garcia court looked to Connecticut v. Johnson, supra, 460 U.S. 73 . “The test of prejudice for Sandstrom error is yet to be formulated. When the issue reached the United States Supreme Court in Connecticut v. Johnson , [citation], that court divided evenly. Justice Blackmun, joined by Justices Brennan, Marshall, and White, took the position that Sandstrom error would be harmless only in rare cases, such as one in which the defendant conceded the issue of intent; in all other cases, the conviction must be reversed regardless of the weight of the evidence. Justice Powell, joined by the Chief Justice, Justice Rehnquist and Justice O’Connor, argued in favor of the Chapman [v. California (1967) 386 U.S. 18 ( 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 )] standard .... Justice Stevens, the tie-breaking vote, did not address the test of prejudice required by the federal Constitution; he maintained that Connecticut’s application of a test requiring per se reversal violated no federal rights even if it went beyond federal constitutional requirements. Justice Stevens thus voted with the majority to affirm the Connecticut court’s reversal of defendant’s conviction for attempted murder.

*520 “The trial court in Connecticut v. Johnson had instructed the jury that ‘ “every person is conclusively presumed to intend the natural and necessary consequences of his act.’” [Citation.] The plurality opinion by Justice Blackmun reasoned that this instruction was the equivalent of a directed verdict on the issue of intent, and that since a directed verdict is impermissible regardless of the weight of the evidence, the conviction must be reversed despite overwhelming evidence of guilt. . . .

“The dissent agreed that an instruction which ‘removes an issue completely from the jury’s consideration’ [citation] would require automatic reversal, but maintained that the instruction given by the Connecticut judge did not go that far. Unlike a directed verdict, argued the dissent, the Connecticut presumption did not take the issue wholly from the jury. That presumption established only that the defendant intended the natural and necessary consequences of his acts, leaving it to the jury to determine the nature of those consequences.

“The dissent, as we read it, draws a fine distinction. It concedes that an instruction which operated independently from the evidence, directing or permitting the jury to find intent without examining the evidence, would be reversible per se. On the other hand, it asserts, a presumption which takes effect only if the jury finds certain preliminary facts does not permit the jury to avoid examining the evidence and should therefore be subject to a less stringent standard of prejudice. . . .

“The dissent’s distinction leads us to conclude that at least eight justices of the United States Supreme Court (all except Justice Stevens, who took no position on the issue) agree that a jury instruction which does take an issue completely from the jury is reversible per se. We have no doubt that they would reach the same conclusion if the error was one of omission—failing to submit the issue of intent to the jury. Both forms of error have the same effect: removing the issue wholly from jury determination, and thus denying defendant the right to jury trial on the element of the charge.” (36 Cal.3d at pp. 552-554, fn. omitted.)

On the basis of the foregoing reasoning, the Garcia court concluded that under the federal Constitution failure to instruct on an element of a special circumstance would generally be reversible per se. (Id. at p. 554.) It noted, however, that certain exceptions might be available to the rule of automatic reversal. It observed that the Connecticut v. Johnson plurality itself suggested the acquittal and concession exceptions. (Id. at pp. 554-555.) It opined that “in an appropriate case, the United States Supreme Court would accept [the Sedeno] exception . . . .” (Id. at p. 555.)

*521 As to the Cantrell-Thornton exception, however, the Garcia court was not as confident. “We are uncertain whether the United States Supreme Court will endorse the Cantrell-Thornton exception to its apparent rule favoring automatic reversal. The four dissenting justices in Connecticut v. Johnson [citation], accused the plurality of requiring ‘reversals of convictions in many situations in which the defendant’s actions establish intent as conclusively as if it were unequivocally conceded.’ [Citation.] The plurality did not respond to this charge. The making of the accusation suggests that four justices of the court would be sympathetic to a limited exception that would avoid retrial in some cases in which the evidence unequivocally and conclusively established intent, but leaves it uncertain whether a majority would take that position.” (36 Cal.3d at pp. 556-557.)

In light of this uncertainty, the Garcia court gave the Cantrell-Thornton exception only tentative recognition: “pending further guidance from the United States Supreme Court, we will apply the reasoning of Cantrell and Thornton only to those cases clearly falling within the ambit of that reasoning so as not to detract substantially from the per se character of the high court’s rule.” (Id. at p. 557.)

In Rose v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ], the United States Supreme Court has given such further guidance. 1 There the high court, resolving the question it had considered but left unanswered in Connecticut v. Johnson , held that Sandstrom error was subject to harmless-error analysis under the Chapman test. This holding is not itself apposite to the question at bar. As both this court and the United States Supreme Court have recognized, Sandstrom error—which involves an impermissible presumption as to malice, but does not remove the issue from the jury’s consideration—is fundamentally different from the error considered here— which does in fact effectively remove an issue from the jury. (Rose v. Clark, supra, 478 U.S. at pp. 580-581 & fn. 8 [92 L.Ed.2d at pp. 472-473 & fn. 8, 106 S.Ct. at pp. 3107-3108 & fn. 8]; Connecticut v. Johnson, supra, 460 U.S. at p. 95, fn. 3 [ 74 L.Ed.2d at p. 840, fn. 3 ] (dis. opn. of Powell, J.); People v. Garcia, supra, 36 Cal.3d at pp. 552-554; see Pope v. Illinois (1987) 481 U.S. 497 , _ [ 95 L.Ed.2d 439, 446 , 107 S.Ct. 1918, 1922 ] [distinguishing between an instruction that, though erroneous, does not remove an issue from the jury’s consideration and an instruction that does remove an issue]; *522 Cabana v. Bullock (1986) 474 U.S. 376, 384-385 [88 L.Ed.2d at p. 715, 106 S.Ct. 689, 696 ] [“Findings made by a judge cannot cure deficiencies in the jury’s findings as to guilt or innocence of a defendant resulting from the court’s failure to instruct it to find an element of the crime”].)

Although the holding of Rose is not itself apposite, the reasoning on which it rests is. In that case, the high court stated that constitutional errors are generally subject to harmless-error analysis under the Chapman test. (478 U.S. at pp. 577-578 [ 92 L.Ed.2d at p. 470 , 106 S.Ct. at pp. 3105-3107].) But to this rule, the court acknowledged, there were two exceptions.

“Despite the strong interests that support the harmless-error doctrine, the Court in Chapman recognized that some constitutional errors require reversal without regard to the evidence in the particular case. [Citations.] This limitation recognizes that some errors necessarily render a trial fundamentally unfair. The State of course must provide a trial before an impartial judge, [citation], with counsel to help the accused defend against the State’s charge, [citations]. Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, [citation], and no criminal punishment may be regarded as fundamentally fair. Harmless-error analysis thus presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury. [Citations.]

“Similarly, harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury. We have stated that ‘a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict. . . regardless of how overwhelmingly the evidence may point in that direction.’ [Citations.] This rule stems from the Sixth Amendment’s clear command to afford jury trials in serious criminal cases. [Citation.] Where that right is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.” ( 478 U.S. at p. 578 [ 92 L.Ed.2d at p. 471 , 106 S.Ct. at p. 3106], fn. omitted].)

Under the second or “directed verdict” exception falls the error considered here—the failure to instruct on an element of a special circumstance and the consequent removal of that issue from the jury’s consideration. That the error here effectively removes only one of the elements of the special circumstance, as opposed to the special circumstance as a whole, does not place it outside the scope of this exception. As the Rose court itself plainly implied, the removal of even a single element would be tantamount to a directed verdict as to that element and would therefore require *523 automatic reversal. (478 U.S. at pp. 579-580 & fn. 8 [92 L.Ed.2d at pp. 471-472, & fn. 8, 106 S.Ct. at pp. 3107-3108 & fn. 8]; accord, Cabana v. Bullock, supra, 474 U.S. at p. 384 [ 88 L.Ed.2d at p. 715 , 106 S.Ct. at p. 696 ].) 2

It could perhaps be argued that the foregoing analysis is inapposite and hence does not support a rule of automatic reversal. Such an argument might run as follows: a special circumstance bears not on guilt but solely on penalty; a criminal defendant does not have a Sixth Amendment right to a jury determination of penalty; hence, the removal of a special circumstance, in whole or in part, from the jury’s consideration does not implicate the Sixth Amendment; therefore, the error considered here does not require automatic reversal. Such an argument, however, would fail.

To begin with, I do not believe the premise of the argument is valid. I recognize, as did the Garcia court (36 Cal.3d at pp. 551-552), that a special circumstance bears on penalty. But as that court implied, as a matter of state law a special circumstance and its elements are similar in nature and function to a crime and its elements. (Ibid.) Moreover, under state law a special circumstance is treated as an element of capital murder. (In re Boyle (1974) 11 Cal.3d 165, 167-169 [ 113 Cal.Rptr. 99 , 520 P.2d 723 ] [construing former Pen. Code, § 1270]; In re Freeman (1980) 102 Cal.App.3d 838, 840 [ 162 Cal.Rptr. 423 ] [same].)

But even if I should assume for argument’s sake that the premise is valid, I believe that the error considered here would nevertheless require automatic reversal on due process grounds under the reasoning of Cabana v. Bullock, supra, 474 U.S. 376 .

In Bullock the United States Supreme Court held that “If a person sentenced to death in fact killed, attempted to kill, or intended to kill, the Eighth Amendment [, as construed in Enmund v. Florida (1982) 458 U.S. 782 [ 73 L.Ed.2d 1140 , 102 S.Ct. 3368 ] ... is not violated by his or her execution regardless of who makes the determination of the requisite culpability . . . .” ( 474 U.S. at p. 386 [ 88 L.Ed.2d at p. 716 , 106 S.Ct. at p. 697].) In so holding, the court rejected the proposition that “Enmund can be satisfied only at a sentencing hearing and by a jury’s decision . . . that the defendant possessed the requisite culpability.” (Id. at p. 384 [ 88 L.Ed.2d at p. 715 , 106 S.Ct. at p. 696].)

*524 The Bullock court reasoned: “A defendant charged with a serious crime has the right to have a jury determine his guilt or innocence [citation], and a jury’s verdict cannot stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof [citation]. Findings made by a judge cannot cure deficiencies in the jury’s finding as to the guilt or innocence of a defendant resulting from the court’s failure to instruct it to find an element of the crime. [Citations.] But our ruling in Enmund does not concern the guilt or innocence of the defendant—it establishes no new elements of the crime of murder that must be found by the jury. Rather, . . . Enmund ‘does not affect the state’s definition of any substantive offense, even a capital offense.’ [Citations.] Enmund holds only that the principles of proportionality embodied in the Eighth Amendment bar imposition of the death penalty upon a class of persons who may nonetheless be guilty of the crime of capital murder as defined by state law: that is, the class of murderers who did not themselves kill, attempt to kill, or intend to kill. [1¡] The decision whether a particular punishment—even the death penalty—is appropriate in any given case is not one that we have ever required to be made by a jury.” (474 U.S. at pp. 384-385 [88 L.Ed.2d at pp. 715-716, 106 S.Ct. at pp. 696-697], fn. omitted].)

The Bullock court went on to explain how its holding affects the scope of federal habeas corpus review: “when a federal habeas court reviews a claim that the death penalty has been imposed on one who has neither killed, attempted to kill, nor intended that a killing take place or lethal force be used, the court’s inquiry cannot be limited to an examination of jury instructions. Rather, the court must examine the entire course of the state-court proceedings against the defendant in order to determine whether, at some point in the process, the requisite factual finding as to the defendant’s culpability has been made. If it has, the finding must be presumed correct . . . , and unless the habeas petitioner can bear the heavy burden of overcoming the presumption, the court is obliged to hold that the Eighth Amendment as interpreted in Enmund is not offended by the death sentence.” (474 U.S. at pp. 387-388 [88 L.Ed.2d at pp. 717-718, 106 S.Ct. at pp. 697-698], fn. omitted.)

In footnote 4, the court majority responded to Justice Blackmun’s dissent: “Justice Blackmun’s reliance on Hicks v. Oklahoma, (1980) 447 U.S. 343 [ 65 L.Ed.2d 175 , 100 S.Ct. 2227 ], and Presnell v. Georgia, (1978) 439 U.S. 14 [ 58 L.Ed.2d 207 , 99 S.Ct. 235 ], for the proposition that state appellate courts may not supply essential findings that the jury has omitted is, as applied in this case, misguided. In Hicks , we held only that where state law creates for the defendant a liberty interest in having the jury make particular findings [bearing on penalty], the Due Process Clause implies that appellate findings do not suffice to protect that entitlement. Unlike the defendant *525 in Hicks , Bullock had no state-law entitlement at the time of this trial to have the jury (or, indeed, anyone at all) make the Enmund findings. Of course, federal law, as later established by Enmund , does entitle Bullock to a determination whether he killed, attempted to kill, intended to kill, or intended that lethal force be used; but, for the reasons explained in the text, the federal-law entitlement, unlike the state-law entitlement involved in Hicks , does not specify who must make the findings.

“In Presnell , the defendant was convicted on charges of murder and kidnapping with bodily injury, and was sentenced to death by the jury. The sole aggravating factor supporting the death penalty for murder was the fact that the defendant was also guilty of kidnapping with bodily injury. The Georgia Supreme Court found that the jury had been wrongly instructed on the elements of kidnapping with bodily injury, but affirmed both the conviction for that crime and the use of the crime as an aggravating factor on the ground that the evidence was sufficient to support the jury’s findings under a theory on which the jury had not been instructed. We set aside both the conviction and the death sentence on the authority of Cole v. Arkansas, supra, [ 333 U.S. 196 (1948)], which held that it was constitutional error for a state court to affirm a conviction for one offense on the basis of evidence in the record indicating that the defendant had committed another offense on which the jury had not been instructed. Insofar as it merely applied Cole in setting aside the defendant’s conviction for kidnapping with bodily injury, Presnell is unremarkable and has little to do with this case. [Citation.] But in reversing as well the death sentence on the ground that the Georgia Supreme Court could not find an aggravating factor on a theory on which the jury had not been instructed, the Presnell Court appeared to assume that the jury’s constitutional role in determining sentence was equivalent to its role in determining guilt or innocence. This assumption, of course, is no longer tenable in light of our holding in Spaziano v. Florida, 468 U.S. 447 (1984).” (Cabana v. Bullock, supra, 474 U.S. at pp. 387-388, fn. 4 [ 88 L.Ed.2d at p. 717, fn. 4 , 106 S.Ct. at pp. 697-698, fn. 4].)

In the foregoing language the United States Supreme Court has clearly shown that failure to instruct on an element of a special circumstance requires automatic reversal, and that the Cantrell-Thornton exception—under which a reviewing court holds the error harmless essentially by making a finding that the jury did not make—can no longer be recognized: when, as in California, “state law creates for the defendant a liberty interest in having the jury make particular findings [bearing on penalty], the Due Process Clause implies that appellate findings do not suffice to protect that entitle *526 ment.” (Cabana v. Bullock, supra, 474 U.S. at p. 387, fn. 4 [ 88 L.Ed.2d at p. 717, fn. 4 , 106 S.Ct. at pp. 697-698, fn. 4].) 3

For the foregoing reasons, I would reaffirm the Garcia rule of automatic reversal, but hold that the Cantrell-Thomton exception is no longer to be recognized.

I turn now to the facts of the case at bar. Unless an exception to the rule of automatic reversal is satisfied, the felony-murder special-circumstance findings should be vacated without consideration of specific prejudice. In my opinion, none of the surviving exceptions is available on this record: first, the erroneous instruction was given in connection with each of the felony-murder special-circumstance allegations found to be true; second, defendant did not concede the issue of independent felonious purpose; third, the issue was not necessarily resolved adversely to him under other, properly given instructions—indeed, it was not even presented for the jury’s consideration.

In summary, I would hold that the trial court erred by failing to instruct on independent felonious purpose with regard to the felony-murder special-circumstance allegations. I would further hold that on this record the error cannot be deemed harmless.

In conclusion, I concur in the judgment as to guilt. I would hold that one of the multiple-murder special-circumstance findings is valid, but that the felony-murder special-circumstance findings are not. And I dissent from the judgment as to penalty.

In their petition for a writ of certiorari in People v. Hamilton (1985) 41 Cal.3d 408 [ 221 Cal.Rptr. 902 , 710 P.2d 981 ], the People presented the following question: “What is the proper standard of prejudice under the United States Constitution for errors in jury instructions regarding intent to kill in capital cases?” The high court handed down Rose and then granted the People’s petition, vacated the judgment, and remanded the case for further consideration in light of that decision. (California v. Hamilton (1986) 478 U.S. 1017 [ 92 L.Ed.2d 734 , 106 S.Ct. 3328 ].)

I recognize that the Rose court introduced its “directed verdict” exception in apparently tentative language: “Similarly, harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution . . . .” (478 U.S. at p. 578 [92 L.Ed.2d at p. 471, 106 S.Ct. at p. 3106], italics added.) The remainder of the paragraph, however, is written in language that is firm and categorical. Accordingly, I do not believe that one can reasonably read a single word to undermine the existence of the exception.

In Pope v. Illinois, supra, 481 U.S. 497 , the United States Supreme Court stated that to the extent Bullock indicated that Sandstrom error was reversible per se it was no longer good authority after Rose. (Id. at p._, fn. 7 [ 95 L.Ed.2d at p. 447 , 107 S.Ct. at p. 1922 ].) This statement, of course, has no effect on my analysis.