People v. Phillips

BIRD, C. J., Concurring and Dissenting.

—Although I concur in the judgment, I write separately because the lead opinion’s analysis of the errors regarding the admission of “other criminal activity” evidence (see former Pen. Code, § 190.3, subd. (b) 1 ) and the prejudice that ensued raises significant questions.

I.

In an attempt to ensure the accused a fair penalty phase trial, my colleagues suggest that in many cases it may be advisable for the trial judge to make a preliminary determination out of the presence of the jury as to whether there is substantial evidence to prove each element of the “other criminal activity” that the prosecutor seeks to present at the penalty phase. (Lead opn., ante, at pp. 72-73 fn. 25.) Although this is an admirable effort which will no doubt result in the exclusion of irrelevant and highly prejudicial evidence at the penalty phase, I remain convinced that due process requires a determination by a separate jury on the truth of other violent criminal activity which the prosecutor intends to rely on in aggravation.

To permit a jury which has just sustained a first degree murder charge with special circumstances to consider the truth of heretofore uncharged criminal activity is unlikely to foster impartial factfinding. “Such a jury would have a very strong tendency—indeed, would be almost compelled— to find [the accused] guilty of the relatively less serious [criminal activity] once it [has] heard all the guilt phase evidence showing him to be a person who commits first degree murder[]. This evidence should not [be] presented to the jury at all until [it has] been found true beyond a reasonable doubt by an impartial fact finder.” (People v. Frierson (1985) 39 Cal.3d 803, 821-822 [ 218 Cal.Rptr. 73 , 705 P.2d 396 ] (cone. opn. of Bird, C. J.).)

II.

The lead opinion also adopts the test for prejudice proposed in Justice Broussard’s concurring opinion in People v. Robertson (1982) 33 Cal.3d 21 , at page 63 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ]. (Lead opn., ante, at pp. 83-84.) Under that test, “any substantial error”—which “implies] a *86 careful consideration whether there is any reasonable possibility that an error affected the [penalty] verdict”—mandates reversal of a sentence of death. It is useful to explore the origins of the “any substantial error” test and to note that the Broussard formulation is not the only test for assessing the prejudicial effect of penalty phase error.

Over two decades ago, in People v. Hines (1964) 61 Cal.2d 164 [ 37 Cal.Rptr. 622 , 390 P.2d 398 ], Justice Tobriner, writing for the court, explained that in applying the California Constitution’s “miscarriage of justice” standard in a death penalty case, “we must recognize the deep-founded difference between the task of the jury in the penalty trial and its ‘usual function of finding whether or not certain events occurred and certain consequences resulted from them.’ [Citation.] In all other situations than the penalty trial the jury deliberates under the court’s instructions and reaches its verdict within the area delineated by the judge. In the penalty phase the court gives no such instructions; ‘the jury must decide [this] question without benefit of guideposts, standards or applicable criteria.’ [Citation.] The jury decides in its absolute and unguided discretion whether to exact the death penalty. In all other situations than the penalty trial the evidence must be narrowed down to the point at issue; in the penalty trial the evidence consists of a multitude of matters pertaining to the defendant [citation] enabling the jury to make ‘a complete and careful analysis of that person as a human composite of emotional, psychological and genetic factors.’ [Citation.]” (Id., at pp. 168-169.)

Justice Tobriner continued: “The isolation of the determination of the death penalty in the penalty trial, which proceeds without standards for the jury, plus the expansion of the subject-matter of the trial, which has reached very wide margins, gives to the jury an undefined task performed upon a showing of a mass of material. As a result the jury may conceivably rest the death penalty upon any piece of introduced data or any one factor in this welter of matter. The precise point which prompts the penalty in the mind of any one juror is not known to us and may not even be known to him. Yet this dark ignorance must be compounded 12 times and deepened even further by the recognition that any particular factor may influence any two jurors in precisely the opposite manner, [f] We cannot determine if other evidence before the jury would neutralize the impact of an error and uphold a verdict. Such factors as the grotesque nature of the crime, the certainty of guilt, or the arrogant behavior of the defendant may conceivably have assured the death penalty despite any error. Yet who can say that these very factors might not have demonstrated to a particular juror that a defendant, although legally sane, acted under the demands of some inner compulsion and should not die? We are unable to ascertain whether an error which is not purely insubstantial would cause a different result; we lack the *87 criteria for objective judgment, [t] Thus, any such substantial error in the penalty trial may have affected the result; it is ‘reasonably probable’ that in the absence of such error ‘a result more favorable to the appealing party would have been reached.’” (Id., at p. 169.) 2 In numerous decisions since Hines , this court has adhered to the rule that “any substantial error” at the penalty phase of a capital case requires reversal and a remand for new penalty trial. (See, e.g., People v. Varnum (1967) 66 Cal.2d 808, 814-815 [ 59 Cal.Rptr. 108 , 427 P.2d 772 ] [error found “substantial”]; People v. Vaughn (1969) 71 Cal.2d 406, 421-422 [ 78 Cal.Rptr. 186 , 455 P.2d 122 ] [error did not constitute “substantial error”].)

It is true, of course, that unlike the death penalty statute in effect at the time of Hines , the 1977 and 1978 death penalty laws—responding to the constitutional mandate set forth in a number of intervening United States Supreme Court decisions (e.g., Gregg v. Georgia (1976) 428 U.S. 153 [ 49 L.Ed.2d 859 , 96 S.Ct. 2909 ])—set forth numerous “factors” to be considered by the jury in its penalty deliberations. (See § 190.3.) While these factors do provide some direction and “guideposts” to the sentencing jury, it is important not to exaggerate the difference in the scope of jury discretion under the current statutes and that under the old law. Although section 190.3 places limits on the “aggravating” factors that the jury may consider in arriving at its decision (see People v. Boyd (1985) 38 Cal.3d 762, 772-776 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ]), the United States Supreme Court has made it clear that the jury must be free to consider any mitigating evidence relating to the defendant’s character or background that the defendant proffers in his behalf. (E.g., Lockett v. Ohio (1978) 438 U.S. 586, 604 [ 57 L.Ed.2d 973, 989-990 , 98 S.Ct. 2954 ]; Eddings v. Oklahoma (1982) 455 U.S. 104 [ 71 L.Ed.2d 1 , 102 S.Ct. 869 ].)

Furthermore, the current statute does not purport to tell the jury how much importance to place on each of the various listed factors or how to weigh one factor against another. In the final analysis, each juror is still *88 required to make a judgment drawn from the juror’s own personal values as to whether, in light of the circumstances of the offense and the defendant’s character and background, the defendant deserves to live or die. (See People v. Brown (1985) 40 Cal.3d 512, 538-545 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ].) For these reasons, it remains true that “[t]he precise point which prompts the [death] penalty in the mind of any one juror is not known to us and may not even be known to him.” (Hines, supra, 61 Cal.2d at p. 169 .)

Justice Broussard’s recasting of the Hines formulation—which has yet to gain a majority view—may be appropriate for some contexts, so long as the fundamental concerns that prompted the Hines decision are kept in mind in applying the standard. Since there is no way of knowing the set of values which each juror brings to the penalty determination, this court must be extremely cautious in dismissing an error at the penalty trial as “harmless.” 3

It is also important to recognize that the Broussard formulation is not the only test for evaluating whether a penalty phase error is a “substantial” one. In her concurring opinion in Eddings v. Oklahoma, supra, 455 U.S. at page 119 [ 71 L.Ed.2d at p. 14 ], Justice O’Connor observed that the federal precedents interpreting the Eighth Amendment’s prohibition on cruel and unusual punishment (Woodson v. North Carolina (1976) 428 U.S. 280 [ 49 L.Ed.2d 944 , 96 S.Ct. 2978 ]; Lockett v. Ohio, supra, 438 U.S. 586 ) “require us to remove any legitimate basis for finding ambiguity concerning the factors actually considered by the [trier of fact in imposing the death penalty].”

A majority of this court adopted this formulation in People v. Easley (1983) 34 Cal.3d 858, 879 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ]. There, a death sentence was reversed as a result of the trial court’s penalty phase instruction which inaccurately told the jury that it must not be influenced by sympathy or pity for the accused. {Id., at p. 878; see CALJIC No. 1.00.) “By directing the jury not to be swayed by sympathy or pity, ... the court in effect told the jury not to give any weight to the bulk of the evidence proffered by the defendant. Thus, the instruction may very well have eliminated any chance Easley had to escape the death penalty.” {Id., at p. 880.) Those conclusions were buttressed by the acknowledgement that the trial *89 court “significantly misled the jury with respect to the fundamental nature of its sentencing task” by precluding consideration of sympathy at the penalty phase, and by “effectively requiring] the jury to disregard much of the evidence which Easley had presented at the penalty phase.” (Ibid.)

These principles—along with Justice O’Connor’s Eddings formulation— were applied a few months later in People v. Lanphear (1984) 36 Cal.3d 163 [ 203 Cal.Rptr. 122 , 680 P.2d 1081 ]. As in Easley , the trial court had instructed the jurors in the language of CALJIC No. 1.00 and had failed to instruct that they could consider “any aspect of the defendant’s character or background in determining whether death was the appropriate penalty.” (Lanphear, supra, 36 Cal.3d at p. 166 .) In holding that retrial of the penalty phase was “constitutionally mandated,” the court observed that “we may not affirm a judgment of death in the face of ambiguity which may have misled the jury as to its proper function.” (Id., at p. 169.)

These identical errors were considered recently in People v. Brown, supra, 40 Cal.3d 512 . Using reasoning similar to that used in Lanphear , a majority of this court held that “the ambiguous tension between these instructions and defendant’s right to sympathetic consideration of all the character and background evidence he presented requires reversal of the penalty judgment. [Citations.]” (Id., at p. 538, fn. omitted.)

Of course, not every penalty phase error may be “substantial” enough to create “ambiguity which may have misled the jury as to its proper function.” However, an error may still be “substantial” even if it is not possible to conclude with relative certainty that a jury would have reached a different result in the absence of the error. Given the unique function a penalty jury serves and the factors it assesses in making its determination, such a mechanistic approach to assessing prejudice should be avoided.

Justice Broussard’s Robertson standard applied in the lead opinion appears flexible enough to accommodate such concerns with respect to the admission of and instructions on other criminal activity evidence. However, the “any ambiguity” test of Easley and the federal precedents might also be appropriate for certain kinds of errors. What is important is that we not lose sight of Easley, Lanphear and Brown in fashioning a workable standard that will be applicable in all cases.

All statutory references are to the Penal Code.

Even before Hines , a number of decisions had adopted a similar approach to the penalty phase prejudicial error question. (See, e.g., People v. Hamilton (1963) 60 Cal.2d 105, 137 [ 32 Cal.Rptr. 4 , 383 P.2d 12 ] [“[I]t necessarily follows that any substantial error occurring during the penalty phase of the trial, that results in the death penalty, since it reasonably may have swayed a juror, must be deemed to have been prejudicial. This rule of law has been hinted at, if not decided, in prior cases. In People v. Linden (1959) 52 Cal.2d 1, 27 [ 338 P.2d 397 ], it was said that error and misconduct at the penalty trial ‘implicitly invites reversal in every case. Only under extraordinary circumstances can the constitutional provision . . . save the verdict.”’]; People v. Terry (1964) 61 Cal.2d 137, 154 [ 37 Cal.Rptr. 605 , 390 P.2d 381 ] [“To attempt to assess the effect of error in this legal vacuum is to superimpose one untestable surmise upon another. We must not pile conjecture upon conjecture and posit the decision of life or death upon a pyramid of guesses. Hence we must conclude that in view of the nature of this kind of trial, the above errors necessarily caused prejudice.”].)

Chief Justice Roger Traynor observed in his monograph on harmless error: “Perhaps the most dangerous risk inheres in errors that relate to the issue of penalty in a capital case. A jury has absolute discretion in arriving at a verdict of death; there are no standards to guide it. In consequence an appellate court cannot possibly determine what factors influenced a jury to impose the death penalty. Any error, unless it related only to the proof of some fact otherwise indisputably established, might have tipped the scales against the defendant. Hence, an error in the penalty phase of a capital case usually compels reversal. ” (Traynor, The Riddle of Harmless Error (1970) pp. 72-73.)