People v. Fierro

MOSK, J.,

Concurring and Dissenting.—I concur in the judgment as to guilt and death eligibility. After review, I have found no error warranting reversal or vacation on either issue.

I dissent, however, as to penalty.

In Caldwell v. Mississippi (1985) 472 U.S. 320 [ 86 L.Ed.2d 231 , 105 S.Ct. 2633 ], the United States Supreme Court reviewed a judgment of death. At the penalty phase of the trial below, defense counsel “plea[ded]” in their summations that “the jury confront both the gravity and the responsibility of calling for another’s death, even in the context of a capital sentencing proceeding.” (Id. at p. 324 [ 86 L.Ed.2d at p. 236 ].) By contrast, in his summation the prosecutor “sought to minimize the jury’s sense of importance of its role.” (Id. at p. 325 [ 86 L.Ed.2d at p. 237 ].) Specifically, he told the jurors that “[defense counsel] would have you believe that you’re going to kill this man and they know—they know that your decision is not the final decision. . . . Your job is reviewable.” (Ibid., internal quotation marks omitted.) He also said that “the decision you render is automatically reviewable by the Supreme Court. Automatically . . . .” (Id. at pp. 325-326 [ 86 L.Ed.2d at p. 237 ], internal quotation marks omitted.)

*256 The Caldwell court concluded that the prosecutor’s comments were improper under the Eighth Amendment to the United States Constitution: they “sought to minimize the jury’s sense of responsibility for determining the appropriateness of death.” ( 472 U.S. at p. 341 [ 86 L.Ed.2d at p. 247 ].) It proceeded to vacate the sentence of death and reverse the judgment as to penalty: “Because we cannot say that [the prosecutor’s remarks] had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.” (Ibid.)

In this case too—which was tried a year after Caldwell —the verdict of death should be set aside and the penalty judgment should be reversed.

Here, as in Caldwell , defense counsel urged the jury to confront its grave responsibility for determining the appropriateness of death.

For example, at one point counsel told the jurors that “each one of you has to make your own decision and take that individual responsibility that you are going to have to live with the rest of your life.”

At another: “Yes, I’m telling you that it’s your individual responsibility. I’m telling you that it’s a responsibility that each of you have to carry on your shoulders. And it’s one that you’ll have to live with the rest of your life.”

Here, as in Caldwell , the prosecutor sought to minimize the jury’s sense of its responsibility—and did so more often and more pointedly than his counterpart in that case.

Thus, at one point the prosecutor told the jurors that it “is false, blatantly false,” that “when you return the verdict of death in this case, you have total, personal responsibility for that result.”

At another, he said that “[defense counsel] wants to make you feel personally responsible for the results of your deliberations, for the results in this phase of the trial.” He urged, “You must not allow this to happen . . . .”

At yet another: “It will be a combination of [the] facts, ladies and gentlemen, of [defendant’s] conduct and his behavior and his crimes, and the law that the Judge gives you that will result in a death verdict in this case.

“It will not be your responsibility, it will not be your fault. The law determines when the facts are applied with the law what penalty is appropriate.

“You are here as representatives of our community to exercise and carry out the law. It is not a personal—it is, of course, a personal decision, but I *257 think you see what I’m saying. It is not a personal responsibility, it is a personal decision to follow the law and arrive at the results that the law calls for. That’s the thing that you must do as jurors in this case.”

The prosecutor’s comments, quoted above, were improper under the Eighth Amendment. On their face, they “sought to minimize the jury’s sense of responsibility for determining the appropriateness of death.” (Caldwell v. Mississippi, supra, 472 U.S. at p. 341 [ 86 L.Ed.2d at p. 247 ].) In essence, the prosecutor declared that “the responsibility . . . rested not on [the jurors] but on a reification he called ‘the law[.]’ ” (People v. Hendricks (1988) 44 Cal.3d 635, 661 [ 244 Cal.Rptr. 181 , 749 P.2d 836 ] (conc. & dis. opn. of Mosk, J.).) Surely, the remarks could have been so understood by a reasonable juror. It must be acknowledged that the prosecutor might perhaps have intended his comments to serve other, permissible purposes as well. But it would blink the facts to assert that he did not aim them at the target that he so squarely hit.

Having reviewed the record, I cannot say that the prosecutor’s constitutionally improper comments were without effect. In the case at bar, death was not a foregone conclusion. The mitigating evidence was significant. True, the aggravating evidence was not insubstantial. Certainly, the crime itself was tragic. But by today’s standards, it was—regrettably—routine. In view of the foregoing, I cannot conclude that the jury’s penalty determination is constitutionally reliable. 1

For the reasons stated above, I would vacate the verdict of death and reverse the judgment as to penalty.

In passing, I note my firm agreement with the conclusion Justice Kennard arrives at in her separate opinion herein: for purposes of Penal Code section 190.3, the circumstances of the crime must be construed narrowly—and certainly cannot be given the practically limitless scope that the majority purport to discern. My views on the matter, which I expressed in my concurring and dissenting opinion in People v. Edwards (1991) 54 Cal.3d 787, 850-856 [ 1 Cal.Rptr.2d 696 , 819 P.2d 436 ], are substantially similar to those which she states in her separate opinion.