# People v. Robertson

> California Supreme Court · February 23, 1989 · 48 Cal. 3d 18

URL: https://www.frixlaw.com/law-library/cases/9581924

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. ANDREW EDWARD ROBERTSON, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** February 23, 1989
- **Citations:** 48 Cal. 3d 18; 255 Cal. Rptr. 631; 767 P.2d 1109; 1989 Cal. LEXIS 16
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Panelli, Mosk
- **Cited by:** 121 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9581924

## How later opinions describe it (automated extraction)

- holding that a capital defendant can waive his right to be present at a penalty-reduction hearing
- applying knowing, voluntary and intelligent standard to waiver of statutory right, prior to Ring, to capital penalty phase jury

## Opinion text

MOSK, J.
I dissent.
Like the majority, I recognize the enormity of defendant’s crimes. Unlike the majority, I also recognize that prejudicial Skipper error (Skipper v. South Carolina (1986) 476 U.S. 1 [ 90 L.Ed.2d 1 , 106 S.Ct. 1669 ]) was committed at trial. In affirming the judgment of death, the majority choose to overlook the prejudicial error. In voting to reverse, I merely follow as I must the path of principle.
I.
Before I can proceed to the discussion of Skipper error and its effect on the outcome, I must review the facts at some length.
The penalty phase was retried to the court pursuant to a waiver of jury trial by the prosecution and the defense. The judge on retrial was not the judge who had presided over the initial trial. Before the court by stipulation of the parties were transcripts of prior testimony in this action and testimony in a habeas corpus proceeding conducted subsequent to the initial trial. *65 Those transcripts described the circumstances of the crimes charged. The tale is recounted in People v. Robertson (1982) 33 Cal.3d 21, 31-32 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ], which is quoted in the majority opinion, ante, at pages 28-30.
In its case-in-chief, the prosecution set out to show that the penalty of death was appropriate for defendant. At the penalty phase of the initial trial the defense had attempted to demonstrate that defendant’s culpability was reduced by reason of mental disease or defect. In evident anticipation of the case it expected the defense to present here, the prosecution called several expert witnesses.
Dr. Otto Gericke, a psychiatrist, testified that defendant had a character disorder, was emotionally immature, exhibited adolescent attitudes and behavior, and was of low average intelligence; at the time of the crimes in question he was sane and acted with undiminished capacity; he had not suffered any major organic brain damage, had no mental disease or defect, was not a mentally disordered sex offender, and was not affected by post-traumatic stress disorder.
Dr. Oren McEwen, a psychologist, stated that defendant was of low average intelligence and had experienced rejection and overprotection as a child; he had a passive-aggressive personality disorder, a dysfunction arising out of dependency coupled with fear of loss of support and significant anger or rage; he had no psychosis or neurosis, did not suffer from any mental disease or defect, and was not affected by posttraumatic stress disorder.
Dr. Robert Flanagan, a psychiatrist, testified that defendant was a schizoid personality with a mixed character disorder with antisocial features; he was sexually aggressive, received gratification from inflicting pain, and had feelings of inadequacy; he was of average intelligence but lacked insight and had concern only for himself; he was not psychotic or neurotic, did not suffer from any mental disease or defect, and was not affected by posttraumatic stress disorder; he continued to be dangerous.
Dr. Charles Larkin, a psychiatrist, stated that defendant did not have a passive-aggressive personality disorder, but a personality disorder of a mixed type with antisocial, aggressive, and borderline features with poor impulse control; he was of borderline to low average intelligence; as a child he developed slowly and suffered emotional trauma; he exhibited antisocial behavior; he had no psychosis, mental disease, or reality distortion, was not affected by posttraumatic stress disorder, and had no neurological disorder; he might continue to be violent.
*66 Dr. James Ramsaran, a psychiatrist, testified that defendant was a mentally disordered sex offender and had an antisocial personality disorder with a predisposition to commit acts to obtain sexual gratification.
Finally, Dr. David Tansey, a psychologist, stated that defendant had a passive-aggressive personality disorder with antisocial features.
To support its position that death was appropriate, the prosecution also introduced evidence of prior crimes. Ernest F. testified that one night in 1973, when he was a 19-year-old enlisted man in the Marine Corps, he went out drinking in Yuma, Arizona; at a bar he met a man who introduced himself as “Tex”; he and “Tex” went bar hopping; in the desert outside of Yuma, “Tex" attacked him, placing a knife to his neck and jabbing him with the weapon; “Tex” forced him to submit to oral copulation as he held the knife at his testicles and groin and jabbed; “Tex” repeatedly threatened to mutilate him and leave him in the desert, and also threatened to kill him; he offered no resistance to the attack, and soon managed to escape; he reported the incident to the police, but charges were never filed; at trial he stated that defendant was the man he had known as “Tex.”
Kim P. testified that one night in 1976 she was standing in a parking lot at a truck stop in Ontario, California; a man approached her from behind, put a knife to her throat, and forced her into his automobile; they drove off; a citizen’s band radio was on; soon, they arrived at a remote area; there, he compelled her to disrobe and then cut off her underpants with his knife; he told her he hated women, and repeatedly said he was goint to kill her; he beat her about the face, head, and breasts; he violated her with a Coca-Cola bottle until her vagina bled; he put lit cigarettes into her vagina and called her a “cry baby” when she complained of pain; he forced her to orally copulate him; he took a pair of underpants from a bag she had with her, saying they were for a collection he kept; soon the citizen’s band radio crackled, he became distracted, and she fled; he cruised around the area for five or ten minutes shouting threats that he would kill her; she made good her escape and reported the incident to the police; she identified defendant as her assailant.
Defendant was subsequently charged with four felony counts as a result of his attack on Kim P.: kidnapping (Pen. Code, § 209), assault with a deadly weapon (id., § 245a), assault by means of force likely to produce great bodily injury (ibid.), and “sex perversion,” specifically, forcible oral copulation (id., § 288a, subd. (d)). Pursuant to a negotiated disposition, he pleaded guilty to forcible oral copulation and the other charges were dismissed. He was sentenced to one year in jail, and was placed on probation for three years subject to, among other conditions, that he “Obtain compe *67 tent psychiatric or psychological care or other counseling program” and “Neither possess nor have under his control any dangerous or deadly weapon. 5)
Finally, Catherine A. testified that one night in 1977 a man driving a station wagon approached her as she was walking along a street in San Bernardino; he offered to pay her for sexual services; she accepted and then entered the vehicle; the man pulled a gun, said, “All right, you fucking whore bitch. I’ve got you now,” and drove on; when they arrived at a remote area, he told her to get in the back of the station wagon and remove her clothing, and she did so; he repeatedly said he had to kill her; she asked why; he responded if he did not she would go to the police; she replied she would not since she had entered his car voluntarily—all the while generally attempting to mollify him; he sodomized her until she bled, forced her to orally copulate him, and masturbated in her face; he beat her breasts and seemed to be obsessed with them; he took her underpants, saying that he wanted them for a collection he kept; eventually, he told her to get out of the car, and she did so; he began to drive off, and she hurriedly dressed; he then turned the car back and she hid in a nearby cemetery; he drove up and down for about 20 minutes and eventually left; she did not report the incident at that time and charges were never filed; at trial, she identified defendant as her assailant.
In its case-in-chief, the defense endeavored to show that death was not the appropriate penalty: defendant had a traumatic childhood, was mildly mentally retarded, had low intelligence and poor judgment, and was in essence a 12-year-old boy in the body of a man; at the time of the crimes he was affected by posttraumatic stress disorder as a result of military service in Vietnam and by brief reactive psychosis; he had made an excellent adjustment to incarceration, had become sincerely religious, and would behave well in prison and pose no danger to others.
To support its position the defense introduced evidence, through defendant’s mother and sister and expert witnesses, concerning defendant’s life before the commission of the crimes in question. The evidence paints the following picture.
Defendant was born in Los Angeles in 1945, the product of a traumatic birth preceded by labor of almost two full days. He had an older sister. He developed slowly; he did not speak until he was about two years old, and did not walk until he was two and a half. At five, his parents were divorced. His mother was awarded custody of him and his sister. Shortly thereafter, his father kidnapped the children and took them to Virginia. Two years later his mother, by then remarried, got the children back. For the remain *68 der of his childhood, defendant was dominated by his sister, who was cruel and overbearing, and was shuffled back and forth between his mother, who worked long hours and evidently had some psychological problems, and his grandmother, who was a strict disciplinarian; he was at once rejected and overprotected. From his earliest school days, he had difficulties: he had low mental ability, was hyperactive, received relentless abuse from his age-mates, and engaged in antisocial behavior. At nine years of age, he was examined by a neurologist, Dr. Guy Hunt, who diagnosed him as mildly mentally retarded and possibly brain damaged.
As he approached adulthood, defendant joined the Job Corps and served a term of about two years. In 1967 he enlisted in the Army. For the next eight years he served in the military. In that period, he did two tours of duty in Vietnam totalling almost three years. In Vietnam, he served as a truck repairman and driver and as a helicopter crew chief and door gunner. While there, he witnessed many horrors, experienced the loss of a stepbrother who was killed in combat, and himself participated in the savagery of war.
When he returned to the United States, defendant had difficulties adjusting to the less structured environment of the peacetime military; he had nightmares and sleeping problems, suffered from feelings of depression and detachment, and seemed to be living in “a fantasy world.” In 1973, while stationed in Long Beach, he married a woman 12 years his senior who had 4 children by a previous marriage. The union quickly ended in divorce: he was unable to shoulder responsibility and was closer in mental and emotional level to his wife’s children than to his wife.
In 1975 defendant attempted to reenlist in the Army but was refused. Thirty years old, he returned to his mother’s home. He was unable to learn a usable skill and was unable to hold a job. In 1976 he attacked Kim P. and was sent to jail. In 1977 he was released and obtained an apartment in the same complex in which his mother lived. Later that year, he killed Karen Ann Litzau and Kimberly Gloe.
To support its position that death was not appropriate, the defense also presented expert testimony. Dr. Hunt, the neurologist who had examined defendant at age nine, stated that defendant had suffered organic brain damage that impaired his mental abilities and adversely affected his judgment and insight, was mildly mentally retarded, and was not amenable to treatment; he has had troubles since infancy and has not been able to get, or take advantage of, the normal opportunities of life because of his environment, because of his impaired intelligence, judgment, and insight, or because of other genetic factors; there appeared to be no specific mental disease from which defendant suffered and no plain psychiatric explanation *69 for his behavior, although it was possible that he was psychotic during the commission of the crimes in question; Dr. Hunt believed that defendant had suffered definite impairment of his mental functions and therefore should not be sentenced to death; he implied that defendant would pose no danger to others and would in fact do well in the structured setting of prison.
Dr. Robert Postman, a psychologist, testified that defendant was of below average intelligence, was probably mildly mentally retarded, and perhaps had an antisocial personality disorder; at the time of the crimes in question he was suffering from brief reactive psychosis rooted, inter alia, in a deep hatred of women; Dr. Postman believed that defendant would pose no danger to others in the structured setting of prison and would in fact be productive there.
Thomas S. Wulbrecht, the director of the Vietnam Veterans Outreach Center in Riverside, testified about defendant’s experiences in Vietnam and the effects of those experiences on his psyche, giving substantially all the evidence on this point which is summarized above. Wulbrecht stated that defendant exhibited chronic posttraumatic stress disorder overlaid with an antisocial personality disorder; posttraumatic stress disorder could lead to a dissociative state wherein the subject would revert to the “survivor mode” of combat in an “altered state of consciousness”; the commission of the crimes in question was consistent with behavior in such a state; it was also consistent with behavior under brief reactive psychosis.
Finally, the defense presented evidence to show that defendant would not pose a danger to others if he was sentenced to life imprisonment without possibility of parole, and indeed would conduct himself well and lead a useful life within the limits imposed by incarceration.
Deputy Sheriff Roger Coyle testified that in 1976 and 1977 he worked at the Glen Helen Rehabilitation Center, at which county prisoners were housed; defendant was one of his charges; he conducted himself well in custody and never caused any disciplinary problems; on one occasion Deputy Coyle transported defendant and several other inmates to a county hospital; while there Deputy Coyle was attacked by one of the inmates, a fight ensued, and he lost control of his gun; at danger to himself defendant pushed the other inmates against a wall to prevent them from getting the gun.
Sergeant Gerald Riley, who had been a correctional officer on “Death Row” at San Quentin Prison, testified that defendant adapted readily to incarceration and was “an outstanding prisoner” and had “never been any problem. He’s always—he just seems like he gets along with everybody well. *70 He gets along with staff well. He follows the rules, regulations”; he seems to have the intelligence of a fourth- or fifth-grader; he is a hard worker and eagerly does favors for the staff and other inmates; when he arrived on “Death Row,” he had an obsessive interest in pornography; some time ago, however, he started studying the Bible with “Death Row” inmates Mariney Joseph and William Payton and became a “born-again” Christian; as a result, he put away pornography and became an even better prisoner than he had previously been; Sergeant Riley believed that defendant would pose no danger to others in prison.
Norvell Greene, who was a correctional officer on “Death Row,” gave testimony that was similar in all respects to Sergeant Riley’s; he emphasized that defendant was very passive, presented no disciplinary problems, and participated in religious activities with inmates Joseph and Payton.
Mariney Joseph, who was an inmate on “Death Row,” testified that when he met defendant in 1980, defendant was obsessively interested in pornography; late in 1981, Joseph was baptized and began to study the Bible with defendant—“Mostly I would read to Andy because Andy can read, but he reads as if there’s a period after every word. One word at a time”; when inmate Payton, who was also a “born-again” Christian, arrived on “Death Row,” Joseph was able to further defendant’s religious education—“Bill [Payton] had a friend that had sent some tape recorders to some of the Christians on the row and one to myself and one to Andy. And what we did, we got Andy the Bible on tape so he could listen to the Bible on tape. . . . Then Bill had his wife to send Andy a picture Bible, the kind that are for kids. And that worked, oh, that was marvelous”; Joseph stated that “a significant change didn’t take place I would say until maybe the latter part of ’82. Because Andy was trying to learn but he is kind of slow at learning—like he is at reading”; Joseph added, however, that when a change did take place it was “tremendous”; he stated that defendant was “very remorseful” about his crimes.
William Payton, another “Death Row” inmate, gave testimony that was substantially similar to that of Joseph; he stated that the change that defendant had exhibited “was not a superficial change, it was completely in the inner man. It was inside in his heart”; he added, “And I think the most impressive thing to me was that Andy always tried to apply it, you know. Whatever we were learning [in Bible study].”
In rebuttal, the prosecution called Dr. Flanagan, who stated that he did not agree with the diagnosis of brief reactive psychosis and posttraumatic stress disorder.
*71 Counsel then presented closing argument. When argument was completed, the court stated that it would render its decision the following day.
When that day arrived, the court declared that it was “not prepared to rule on [the] case today” and continued the matter two days.
On the date to which it had continued the proceedings, the court announced its decision and provided a statement of reasons. Because of their importance here, the court’s words must be quoted at length.
“The Court: All right. The Court is prepared at this time to make a decision and give a statement of reasons. I should indicate this is probably the most difficult decision I have had to make in the 13 V2 years that I have been a judge. I have agonized over it greatly for three days now, but the following is my statement of reasons and determination:
“In making the determination whether the penalty shall be death or life imprisonment, the Court has taken into account and been guided by the aggravating and mitigating factors shown by the evidence and referred to in Penal Code Section 190.3 as follows:
“Factor A: ‘The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1’ of the Penal Code.
“As to that factor, the Court notes the defendant has been convicted by a jury or found guilty by a jury of two separate counts of first degree murder personally committed by him, and has found to be true nine special allegations under Section 190.2 of the Penal Code. The special findings were multiple first degree murders. The murder of each of the victims involved the infliction of torture. Each of the murders was committed during the commission and attempted commission of robbery. Each of the murders was committed during the commission and attempted commission of a kidnapping. The murder of Karen Ann Litzau was committed during the attempted commission of rape. The murder of Kimberly Gloe was committed during the commission of rape.
“Factor B: ‘The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.’
“Under this factor, the Court finds beyond a reasonable doubt that the defendant was involved in criminal activity which involved the actual use and threat to use force or violence against three separate victims; that is, *72 Ernest [F.], Kim [P.], Catherine [A.]; and various statements to the police, to the psychiatric experts and to Kim [P.] the defendant made admissions relating to other possible criminal activity, but none of these were proved beyond a reasonable doubt and the Court has not considered them for any purpose.
“Factor C: ‘Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.’
“Under this factor, the Court has considered the circumstances of these offenses. The defendant’s prior criminal activity involving the use of force or violence, and the testimony of all the expert witnesses that testified at the penalty phase and at the trial. The Court finds that the defendant was not acting under the influence of extreme mental or emotional disturbance in the commission of these crimes. Specifically the Court finds that the defendant was not acting under a post-traumatic stress disorder or under the psychotic state defined as brief reactive psychosis.
“This finding is based on careful evaluation of the conflicting testimony of the expert witnesses, as well as the Court’s evaluation of the facts and circumstances surrounding these two crimes and the defendant’s criminal history. All the experts agree that the defendant does suffer from an antisocial character disorder and possibly other character disorders.
“His criminal history shows a preoccupation with sexual gratification from either males or females. Ernest [F.] was forced at knifepoint to submit to a homosexual attack which was accompanied by repeated threats of mutilation. He was jabbed in the neck and the groin area and the testicles at knifepoint, causing extreme mental stress, although no actual physical injury. Since he offered no resistance and managed to escape after a relatively short encounter, no one will ever know how much danger he was actually in. Except for the sex of the victim, the circumstances of this crime was very similar to the crimes against Kim [P.] and the original assaults against the two murder victims in this case; that is, the use of a knife, threats of bodily harm or actual infliction of harm, and threats of death.
“Kim [P.] was kidnapped from a parking lot at knifepoint with a knife being held to her throat similar to the fashion that it was held to Mr. [F.’s] throat. She was beaten about the face and the breasts, told that the defendant was going to kill her, that he hated women, that she was physically abused with a Coke bottle until she was bleeding from the vagina. She was burned by lighted cigarettes inserted in her vagina and was called a crybaby when she complained of the pain. Fortunately Kim [P.] also was able to escape when the defendant’s attention was distracted by the CB. Defendant *73 continued cruising around the area for five to ten minutes after her escape shouting threats that he was going to kill her.
“The assault on Catherine [A.] was somewhat different in that a gun was used rather than a knife, and she was ultimately voluntarily released after a four-and-a-half-hour ordeal. The crimes against her were similar to the others in that the defendant repeatedly threatened to kill her because otherwise she would go to the police. He seemed obsessed with her breasts and she was sodomized until she was bleeding.
“The Court notes the similarities in this preoccupation with the breasts, that he had beaten both Kim [P.] and Catherine [A.] in the breast area, that he attempted to cut off the breasts from the body of Karen Litzau and actually cut off both breasts from Kimberly Gloe. Catherine [A.], unlike the others, tried very hard not to aggravate the defendant, repeatedly insisted that she would not report him to the police since she’d voluntarily gotten into his car, and he eventually allowed her to leave the car and he drove away. He apparently changed his mind, however, because shortly after-wards he came back to the area and drove up and down the streets for about 20 minutes while Catherine [A.] hid.
“In the case of the victims in this case, the only reasonable inference from the evidence, as the Court views it, is that he intended to rape them when he first picked them up unless they voluntarily submitted to his demands. He carried the knife to force submission if they should resist. He may have actually preferred to use force because that then gave him an excuse for inflicting pain. When the victims threatened to turn him in to the police, he determined he would kill them to prevent this.
“The strongest indication to the Court that he was not in a brief reactive psychosis at the time is the fact that he tried to cut off Karen Litzau’s breasts at the time of the first murder, was unsuccessful in doing so because the knife was dull; and that between that and the second assault he had sharpened the knife and then did actually accomplish this act. This is strong indication to the Court that he might have killed the victims even if they had not threatened to turn him in to the police. It is noted that he had made threats to kill to Kim [P.] and Catherine [A.], as well as threats to maim Mr. [F.].
“There is no evidence introduced either in aggravation or mitigation as to factors D, E or F of Section 190.3. So the Court won’t discuss those.
“Factor G: ‘Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his *74 conduct to the requirements of law was impaired as a result of mental disease or—’ and I’m adding to this by direction of the Supreme Court— ‘mental defect or the effects of intoxication.’
“There’s no evidence at all of intoxication, and the Court finds the defendant’s capacity in that regard was not impaired as a result of mental disease or mental defect.
“The Court has considered the testimony of Dr. Hunt that the defendant suffered from a mental defect of mild mental retardation, and that would be a mental defect, but even if that is a fact, the Court finds that it did not affect the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The Court has already found he was not acting under brief reactive psychosis or under post-traumatic stress disorder at the time of the murders and will discuss the antisocial character disorder evidence later.
“Factor H: ‘The age of the defendant at the time of the crimes.’
“Under the facts of this case, the Court does not consider his age as either a mitigating or aggravating factor. Although most witnesses placed his intellectual development at about a 12-year level, he had fully matured physically, had served a term in the Job Corps and substantial time in the Army, including his two tours of duty in Vietnam. And according to his statements to the doctors, he had been a truck repairman and driver and a helicopter crew chief and a door gunner while in Vietnam. So considering those factors, the Court doesn’t feel that age is either a mitigating or aggravating factor.
“As to factor I, there was no evidence introduced relating to this factor, so the Court won’t discuss that.
“Factor J: ‘Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.’
“The Supreme Court has held in the prior decision in this case that the trier of fact may properly consider sympathy or pity for the defendant in determining whether or not to show mercy and spare the defendant from execution and went on to quote from a federal case in the same case that: ‘The defendant is constitutionally entitled to have the sentencing body consider any sympathy factor raised by the evidence before it.’
“As to the jury finding of special circumstances, the Court considers that the primary motivation of the defendant in each of the murders was to *75 accomplish a sexual assault with infliction of pain and, ultimately, the murders as part of the infliction of pain and, also, to avoid detection. The Court, therefore, does not consider the additional findings regarding kidnapping and robbery to be aggravating factors. I think they were merely incidental to the pain purposes. So the Court does not consider them to be aggravating factors.
“The Court has also considered the testimony of Dr. Gericke, that the testimony [sic] was of low average intelligence, emotionally immature and acting as an adolescent. The Court has considered the testimony by Dr. McEwen that the defendant was diagnosed as having a passive-aggressive personality disorder, that is, a personality dysfunction primarily created out of dependency, coupled with a fear of loss of support and a great deal of anger or rage. Dr. McEwen also stated defendant apparently suffered a great deal of rejection as a child, together with overprotection. He placed defendant’s intelligence at the lower end of average.
“Dr. Flanagan diagnosed defendant as suffering from a character disorder, but no mental disease or mental defect. Diagnosis of Dr. Flanagan was mixed character disorder with antisocial features and sexual aggression and inadequate feelings. Dr. Tansey diagnosed defendant as a passive-aggressive personality with antisocial features. Dr. Larkin testified that defendant had borderline to low normal intelligence. He also testified that defendant suffered childhood emotional trauma, slow intellectual development and evidence of antisocial behavior. He diagnosed defendant as having a personality disorder of a mixed type with antisocial aggressive and borderline features with poor impulse control.
“Dr. Ramsaran diagnosed defendant as an antisocial personality with predisposition to act for personal gratification. Dr. Hunt testified that at the time of the murders and, also, the Kim [P.] assault, the defendant did not exhibit the symptoms of specific mental illness, but the doctor did feel that the defendant had some organic problems that were interfering with his mental ability, with his judgment, insight and so on. Dr. Hunt found no psychiatric explanation for the defendant’s bizarre behavior. Dr. Hunt testified he did not believe that the defendant should receive the death penalty because he has definite impairment of his mental functions. He has had trouble since he was an infant, that he was not amenable to treatment, that he’s not had normal opportunities in life, either from his environment, genetic things or fróm his ability to think and use good judgment and insight. Dr. Postman also said defendant was below average intelligence, probably mildly retarded, and that he had an antisocial personality disorder.
*76 “The Court has also considered as matters in mitigation the testimony of Deputy Sheriff Roger Coyle about the incident at the county hospital where the defendant interfered to help the deputy avoid harm and, also, his testimony about the defendant’s general good conduct while in custody of the county here. The Court has also considered the testimony of the two death row prison guards and the two death row prisoners concerning defendant’s conduct while at San Quentin prison, and, particularly, the changes in his attitude and his actions since his rebirth or newly found interest in the Bible and study of religion. Based on this testimony, the Court is of the opinion that as long as Mr. Robertson is confined to prison, he will not pose any significant danger to the public, including other prisoners or prison officials.
“The Court has also considered as mitigating factors the historical background information relating to the defendant provided by his mother and sister and the various expert witnesses, including the circumstances that existed at the time of his birth, his not being able to walk until age two and a half, his delay in starting to talk, his being taken to Virginia by his father as a small child, and his return later to California; his chaotic family relationships, his difficulty in school, his relationship with his mother, grandmother and sister, his difficulties with his peers, and his below average intellectual achievement or mild mental retardation.
“By way of summary, the circumstances in aggravation there then include the nature of the crimes themselves:
“First, defendant obviously planned the kidnappings for the purpose of sexual assault and sexual gratification. This is supported by the fact that defendant cruised around looking for potential victims, that he carried the boning knife in violation of his probation, the nature of the assaults on the bodies themselves, the fact that the defendant sharpened the knife between the first and second murders, the extreme mutilation of the bodies before and after death.
“The Court has also considered in aggravation factors relating to the defendant. He apparently obtained gratification from inflicting pain and discomfort, both physical and mental on his victims.
“As evident from the manner in which the murders were committed, it is also evident from the circumstances of his assault on Mr. [F.] when he held the knife to Mr. [F.’s] throat and later on to his groin and to his testicles, when he repeatedly suggested that he ought to mutilate this victim and leave him out on the desert. It is also evident from his conduct with Kim [P.] where he repeatedly threatened to kill her, physically abused her with the Coke bottle until she was bleeding, and by burning her by inserting a *77 lighted cigarette into her vagina, as well as beating her about the head and breasts. It’s also apparent from his conduct with Catherine [A.] where he threatened to kill her, also, and actually physically abused her by sodomizing her until she was bleeding and his bruising of her breasts.
“Catherine [A.] in her testimony said that the defendant was obsessed with breasts and this seemed to be in line with the other victims, because he also beat Kim [P.’s] breasts and attempted to cut off Karen Litzau’s breasts, and did, in fact, cut off the breasts of Kimberly Gloe.
“The Court could find no evidence that the defendant was under the influence of any extreme mental or emotional disturbance at the time of the murders or any of the other three assaults.
“The Court finds that at the time of each of the murders the defendant had the capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of law, and that his capacity was not impaired as a result of mental disease or mental defect.
“The Court has also considered the fact that at the time of the murders the defendant was on probation from the crimes committed against Kim [P.] and was actually undergoing therapy at that time.
“The Court has considered circumstances in mitigation: “One, by the testimony of all the doctors, defendant has low average intelligence or is mildly retarded, mentally retarded.
“Second factor is the defendant was emotionally immature.
“The third factor is defendant suffered from personality or character disorders variously described as passive-aggressive personality disorder or mixed character disorder with antisocial features, and sexual aggression or passive-aggressive personality with antisocial features or personality disorder of a mixed type with antisocial, aggressive and borderline features with poor impulse control.
“Four, the defendant may have organic problems that interfered with his mental ability, his judgment and insight.
“Five, sympathy factors which were summarized by Dr. Hunt to include impairment of his mental functions, continual troubles since infancy, the fact that he’s not amenable to treatment, that he has not had normal opportunities in life either from his environment or genetic things or from his limited ability to think and to use good judgment.
*78 “And, six, his conduct in coming to the aid of Deputy Sheriff Coyle at some danger to himself.
“The Court does not consider the fact that he does not appear to pose a threat to society as long as he's confined to prison to be a factor either in aggravation or mitigation in punishment for these offenses.
“After careful consideration of all the evidence, after considering, taking into account, and being guided by the aggravating and mitigating factors referred to in Penal Code Section 190.3, the Court determines that the penalty should be death.” (Italics added.)
After the court announced its decision, defendant requested, and was granted, permission to make a statement. He said: “Your Honor, I know the crime I did was injust [sic] to the two girls, and I look at it with my remorse. If I could take my life right now and bring those two girls back to life, I would do it, but I know that I can’t bring them back to life. And what you gave me, I understand, and thank you for hearing my case.” The court responded: “Okay, Mr. Robertson.” Defendant replied: “Have a good Christmas, sir.”
Subsequently, the court denied defendant’s automatic application for reduction of penalty pursuant to subdivision (e) of former Penal Code section 190.4 and imposed the sentence of death.
II.
As I shall explain, the record shows that in determining whether defendant was to live or die the trial court refused, or must be presumed to have refused, to consider evidence he presented to show that he would conduct himself well if sentenced to prison. The record also shows that the court’s refusal to take this evidence into account cannot be held harmless.
The principles applicable here are well settled. “[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment, [citation], requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death, [fl] This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific *79 case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 304-305 [ 49 L.Ed.2d 944 , 96 S.Ct. 2978 ] (opn. of Stewart, Powell and Stevens, JJ.).)
To guarantee that capital sentencing decisions are as individualized and reliable as the Constitution demands, the Eighth Amendment requires that the defendant may not be barred from introducing any relevant mitigating evidence. (Skipper v. South Carolina, supra, 476 U.S. 1, 4-8 [ 90 L.Ed.2d 1, 6-9 ]; see Eddings v. Oklahoma (1982) 455 U.S. 104, 113-115 [ 71 L.Ed.2d 1 , 102 S.Ct. 869 ]; Lockett v. Ohio (1978) 438 U.S. 586, 597-605 [ 57 L.Ed.2d 973 , 98 S.Ct. 2954 ] (plur. opn. by Burger, C. J.).) It also requires, of course, that “the sentencer may not refuse to consider or be precluded from considering ‘any [such] relevant mitigating evidence.’ ” (Skipper v. South Carolina, supra, at p. 4 [ 90 L.Ed.2d at p. 6 ] (quoting Eddings v. Oklahoma, supra, at p. 114 [ 71 L.Ed.2d at p. 11 ]); accord, Hitchcock v. Dugger (1987) 481 U.S. 393, 394-395 [ 95 L.Ed.2d 347 , 107 S.Ct. 1821, 1822 ].) In this context, “to consider” means more than merely to hear such evidence (see Miller v. Wainwright (11th Cir. 1986) 798 F.2d 426, 431 ): it means to listen to the evidence, assign it weight, and then take it into account in deciding whether the defendant is to live or die (Eddings v. Oklahoma, supra, at pp. 114-115 [ 71 L.Ed.2d at p. 11 ]).
It is plain that the class of “relevant mitigating evidence” (Eddings v. Oklahoma, supra, 455 U.S. at p. 114 [ 71 L.Ed.2d at p. 11 ]) is broad. Included within its bounds is “evidence that the defendant would not pose a danger if spared (but incarcerated) . . . .” (Skipper v. South Carolina, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ].)
From the foregoing it follows that when the sentencer refuses to consider relevant mitigating evidence there occurs error of federal constitutional dimension—which is commonly referred to as “Skipper error.” (See Skipper v. South Carolina, supra, 476 U.S. at p. 4 [90 L.Ed.2d at pp. 6-7]; Hitchcock v. Dugger, supra, 481 U.S. at pp.394-399 [95 L.Ed.2d at pp. 350-353].) Indeed, even when the record does not clearly reveal such a refusal on the part of the sentencer but merely furnishes a “legitimate basis for finding ambiguity concerning the factors actually considered,” error is presumed to have occurred: “the reasoning of the plurality opinion in Lockett compels [the result] ... so that we do not ‘risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.’ ” (Eddings v. Oklahoma, supra, 455 U.S. at p. 119 [ 71 L.Ed.2d at p. 13 ] (conc. opn. of O’Connor, J.); see California v. Brown (1987) 479 U.S. 538, 546 [ 93 L.Ed.2d 934 , 107 S.Ct. 837, 842 ] (conc. opn. of O’Connor, J.).)
As this court recently held in People v. Lucero (1988) 44 Cal.3d 1006, 1031-1032 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ], Skipper error is subject to *80 harmless-error review under the test of Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ], Under Chapman, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Id. at p. 24 [17 L.Ed.2d at pp. 10-11].) When the error occurred at the penalty phase of a capital trial, the court must proceed with special caution. (See, e.g., Satterwhite v. Texas (1988) 486 U.S. 249, 258 [ 100 L.Ed.2d 284, 295 , 108 S.Ct. 1792, 1798 ] [stating that “the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer”].)
As stated above, I believe that Skipper error in fact occurred or must be presumed to have occurred. The majority assert that the trial court did indeed take defendant’s evidence of future good behavior into account in fixing the penalty. The record, however, is otherwise.
Although it did not state in so many words that it refused to take defendant’s evidence of future good behavior into account, the trial court made the point sufficiently plain by implication. It expressly found—and its finding is amply supported by the evidence and not questioned by the majority—that defendant would not be dangerous if imprisoned: “[T]he Court is of the opinion that as long as Mr. Robertson is confined to prison, he will not pose any significant danger to the public, including other prisoners or prison officials.” In my view, such a finding entails the conclusion that defendant had established the existence of a factor in mitigation. The reason is plain: since “evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating” (Skipper v. South Carolina, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ], italics added), evidence found persuasive on the point must be considered actually mitigating and hence must be given some weight.
But—perhaps influenced by language in People v. Murtishaw (1981) 29 Cal.3d 733, 772 [ 175 Cal.Rptr. 738 , 631 P.2d 446 ], to the effect that the issue or future dangerousness “is at best only marginally relevant to” the choice of penalty—the trial court went on to state that the fact it had itself expressly found was immaterial: “the Court does not consider the fact that [defendant] does not appear to pose a threat to society as long as he’s confined to prison to be a factor either in aggravation or mitigation in punishment for these offenses.” (Italics added.) 1
*81 It is true that the trial court stated that it had “considered the testimony of the two death row prison guards and the two death row prisoners concerning defendant’s conduct while at San Quentin prison, and, particularly, the changes in his attitude and his actions since his rebirth or newly found interest in the Bible and study of religion.”
But it is also true that the court stated that in fixing the penalty it did not take such testimony into account: “The Court does not consider the fact that [defendant] does not appear to pose a threat to society as long as he’s confined to prison to be a factor either in aggravation or mitigation . . . ,” 2
The majority construe the trial court’s statement to mean that the evidence presented on the issue of future conduct—although not insignificant in the abstract—was of minimal weight in the context of this case. But as the record reveals, the evidence is far from insubstantial in either extent or relative importance. Indeed, the defense called six witnesses—Drs. Hunt and Postman, Sergeant Riley and Officer Greene, and “Death Row” inmates Joseph and Payton—to establish that defendant “would not pose a danger if spared (but incarcerated)” (Skipper v. South Carolina, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ]). In any event, the court made it plain that it did not consider the future conduct evidence at all. In the statement of reasons, it said that in fixing the penalty it had “taken into account and been guided by” certain specified aggravating and mitigating factors. Among those factors there appeared neither defendant’s evidence concerning future good conduct nor its own express finding on the issue.
Faced with the foregoing facts, I am compelled to conclude that Skipper error occurred or must be presumed to have occurred. Although it heard the evidence presented by the defense to show future good conduct and went so far as to expressly find that evidence persuasive, in my view the trial court simply did not take the evidence into account in determining whether defendant should be sentenced to death or life imprisonment without possibility of parole. But at the very least, the record furnishes a “legitimate basis for finding ambiguity concerning the factors actually considered” (Eddings *82 v. Oklahoma, supra, 455 U.S. at p. 119 [ 71 L.Ed.2d at p. 14 ] (conc. opn. of O’Connor, J.)).
As stated above, I also believe that the Skipper error in this case was prejudicial.
The record reveals that the aggravating and mitigating factors were closely balanced. To be sure, the circumstances of the crimes of which defendant was convicted in the present proceeding, together with his prior violent criminal activity, weighed very heavily in favor of death. But defendant’s mental retardation, low intelligence, emotional immaturity, and personality and character disorders weighed very heavily in favor of life. The trial court clearly recognized the point when it said: “I should indicate this is probably the most difficult decision I have had to make in the 13!A years that I have been a judge. I have agonized over it greatly for three days now . . . .” 3
The record also reveals that the evidence presented by the defense to show that defendant “would not pose a danger if spared (but incarcerated)” (Skipper v. South Carolina, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ]) was far from insignificant. Indeed, under any fair and reasonable standard the testimony on this point presented by Drs. Hunt and Postman, Sergeant Riley and Officer Greene, and “Death Row” inmates Joseph and Payton, must be considered substantial if not compelling.
In view of the foregoing, I simply cannot “declare a belief that [the Skipper error] was harmless beyond a reasonable doubt.” (Chapman v. California, supra, 386 U.S. at p. 24 [ 17 L.Ed.2d at p. 711 ].) Accordingly, I would vacate the trial court’s decision and remand the cause to that court for redetermination of penalty. 4
III.
Because Skipper error was committed at trial and cannot be deemed *83 harmless beyond a reasonable doubt on this record, I am compelled to dissent.
Broussard, J., concurred.
Appellant’s petition for a rehearing was denied April 5, 1989, and the opinion was modified to read as printed above. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
My reading of the trial court’s statement is confirmed when I consider the statement in light of a comment made by the prosecutor in the course of closing argument: “It could also be argued that Mr. Robertson in this category should be given some consideration about mitigation due to the fact that he is able to conform his lifestyle and his way of acting in a controlled environment. This I think would go towards the evidence that in a controlled setting, *81 such as death row, he is able to conform. I think this is inaccurate in that the crimes that we are talking about in Mr. Robertson’s case occurred within his personal life away from the norms or controls that society imposes upon a person.”
In passing on defendant’s automatic application for reduction of penalty, the trial court confirmed that it had refused to take defendant’s evidence of future good behavior into account: “The Court also indicated at th[e] time [it rendered its decision] and the Court did consider in weighing these factors that after consideration of all the evidence it does not appear to the Court that he presently poses a threat to society as long as he’s confined to a prison. And considering that I didn’t consider that to be either in aggravation or mitigation, punishment, at least, but the Court did make it clear that the Court did not consider that an aggravating factor, the fact that he might still be a danger.”
The majority assert that the trial court’s comment revealed only “a general difficulty in accepting the unfamiliar responsibility, usually borne by a jury, of determining sentence in a capital case.’’ (Maj. opn., ante, at p. 57, fn. 14.) The assertion is not supported by the record. First, the court expressly stated in words that the majority have quoted but otherwise chosen to ignore: “I have agonized over it [i.e., the decision] greatly for three days now . . . .” Second, the court’s statement of reasons—which the majority have also largely chosen to ignore—graphically reveals just how close the case was.
In passing, I note my agreement with the majority’s holding that a capital defendant has a constitutional right to be present at the imposition of sentence. I cannot agree, however, with their conclusion that such a defendant may waive that right.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9581924. Public record. Not legal advice.