People v. Balderas

LUCAS, J., Concurring and Dissenting.

I concur in the judgment to the extent it affirms defendant’s conviction of guilt as to all counts.

I dissent, however, to that portion of the majority opinion which holds that the trial court in a criminal case must permit “reasonable inquiry” regarding prospective jurors’ “specific legal prejudices” which might be used as a basis for a challenge for cause. (Ante, p. 185.) In other words, in addition to determining the venireman’s general ability to follow the law and the judge’s instructions, counsel must now be permitted to explore the juror’s reactions to any legal doctrines which are “material to the trial and controversial.” (Ante, p. 184.) Apart from the obvious difficulty a trial court will have in determining whether a particular legal doctrine is “controversial” (the majority finds the diminished capacity doctrine meets that standard, while the circumstantial evidence rule does not), the majority’s holding will cause further delay in a voir dire process already overencumbered by unrealistic restrictions upon the trial court’s ability to expedite and control the proceedings. (See People v. Williams (1981) 29 Cal.3d 392, 407-409 [ 174 Cal.Rptr. 317 , 628 P.2d 869 ] [allowing voir dire exploration of possible peremptory challenges].)

In 1973, our court observed that “voir dire, designed as a device to weed out unsuitable jurors, may, if over-extended by counsel, be self-destructive. If voir dire is burdened with the weight of excess rococo examination, the trial structure itself can be endangered. ” (People v. Crowe (1973) 8 Cal.3d 815, 819 [ 106 Cal.Rptr. 369 , 506 P.2d 193 ].) Quoting from an earlier case, we noted in Crowe ‘“an increasing tendency to prolong the proceedings inordinately by allowing counsel on either side to indulge in tedious examination of jurors, apparently with no definite purpose or object in view, but with the hope of eliciting something indicating the advisability of a peremptory challenge . . . .’” (Id., at p. 821.) We further decried voir dire attempts by counsel “ ‘to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.’” (P. 824, fn. omitted.)

*207 In Crowe , we found no error, and no statutory or constitutional inhibition, in a procedure whereby the trial judge conducted the entire voir dire examination himself, permitting counsel to submit questions which, if reasonable, would be propounded by the judge. Approving this practice, we concluded in Crowe that “direct examination by counsel has perverted the purpose of voir dire, and transformed the examination of jurors into a contest between counsel for the selection of a jury partial to his cause and for the attainment of rapport with the jurors so selected, a contest which may overshadow the actual trial on the merits.” (P. 828, fn. omitted.) Although Crowe’s immediate holding was abrogated by an amendment to Penal Code section 1078, permitting direct examination by counsel, Crowe’s insights and concerns remain as valid and compelling today as when written 13 years ago. The majority, in cases such as People v. Williams, supra, 29 Cal.3d 392 , and the present case, has ignored those teachings and has given counsel broad leeway to conduct protracted fishing expeditions ostensibly aimed at developing challenges to particular jurors, but equally susceptible to the various abuses catalogued in Crowe . I cannot join my colleagues in their continued departure from Crowe’s admonition against unduly overextending the voir dire process. The costs to the judicial process are simply too great.

I also dissent to that portion of the judgment which sets aside the special circumstances finding and reverses the penalty of death by reason of People v. Garcia (1984) 36 Cal.3d 539 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ], and Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ]. For reasons previously expressed, I strongly disagree with the holdings in those cases. (See People v. Whitt (1984) 36 Cal.3d 724, 749 [ 205 Cal.Rptr. 810 , 685 P.2d 1161 ] (dis. opn.).) But assuming arguendo that those cases were correctly decided, I fully concur with the majority opinion that there was sufficient evidence of intent to kill to permit retrying defendant on a felony-murder special circumstance theory.

Finally, I dissent to that portion of the majority opinion which directs the trial court, on retrial of the penalty phase, to exclude evidence of defendant’s 1980 felony auto theft conviction. The majority reasons that the conviction is inadmissible because it did not occur prior to defendant’s commission of the 1979 capital offense, and accordingly, was not a “prior conviction” within the meaning of the 1978 death penalty law. (Pen. Code, § 190.3, subd. (c).) This holding, which would withhold from the penalty jury vital information regarding defendant’s character and criminal record, is patently wrong.

The initial paragraph of section 190.3 states that at the penalty trial “evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not *208 limited to, the nature and circumstance of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of . . . [or express or implied threat to use] force or violence, and the defendant’s character, background, history, mental condition and physical condition.” (Italics added.)

The section continues by setting forth the specific sentencing factors which the trier of fact must take into account, including “The presence or absence of any prior felony conviction.” (Subd. (c).) The obvious purpose of section 190.3, when read in its entirety, is to permit the jury to consider all relevant facts and circumstances which might aid the trier of fact in making an intelligent, nonarbitrary penalty decision. How can it possibly be argued that the defendant’s felony convictions, even those occurring subsequent to his capital offense, are irrelevant or improper factors for the trier of fact’s consideration? In the words of the United States Supreme Court, “consideration of the character and record of the individual offender” is a “constitutionally indispensible part” of the death penalty determination process. (Woodson v. North Carolina (1976) 428 U.S. 280, 304 [ 49 L.Ed.2d 944, 961 , 96 S.Ct. 2978 ], italics added.) Thus, any felony conviction which the defendant has suffered prior to capital sentencing is highly relevant to the penalty determination and is clearly admissible under section 190.3.

In my view, to deprive the trier of fact of relevant information regarding defendant’s background defeats the overriding statutory purpose of assuring that the penalty in capital cases is carefully tailored to both the offense and the offender. Why should one who suffered, for example, a plethora of felony convictions following commission of his murder be treated identically, for capital sentencing purposes, to the offender who led a blameless life following such an offense? And what of the offender who is convicted of attempting to escape from jail or prison (Pen. Code, §§ 4530, subd. (b), 4532, subd. (b)) following his incarceration for a capital offense? Should not the penalty jury be told of that defendant’s demonstrated refusal to peacefully accept his punishment?

I would affirm the judgment in its entirety.