concluding prosecution must prove unadjudicated offenses beyond a reasonable doubt
How later courts described this case
- concluding prosecution must prove unadjudicated offenses beyond a reasonable doubt
- held: pre-trial publicity not presumptively prejudicial where (1) neither victim nor defendant prominent; (2) county population equals 405,600; and (3) no evidence of unusual local hostility toward defendant's ethnic group
- “Kern County, with a 1981 population of 405,600, ranked 14th among California’s 58 counties in that respect. Cases in which venue changes were granted or ordered on review have usually involved counties with much smaller populations.” (citation omitted)
- “evidence of habitual narcotics or alcohol use is not admissible to impeach perception or memory unless there is expert testimony on the probable effect of such use on those faculties”
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Pedeferri v. Seidner Enterprises
41 Cal.3d 144, 174 , superseded by statute on other grounds as stated in People v. Martin (1998) 64 Cal.App.4th 378, 385
The opinion
MOSK, J.
I concur in the judgment of guilt but dissent from setting aside the special circumstance finding and the penalty.
The evidence is sufficient to show an intent to kill within the requirements of Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ]. The majority stress the accidental nature of the original shooting. *209 That may be so, though it is debatable. But the original shooting was not the ultimate cause of death: it was the deliberate, intentional abandonment by defendant of his mortally wounded victim with knowledge that death was the inevitable result.
The majority describe the foregoing conduct as demonstrating “implied malice” and thus the basis merely for a second degree murder verdict. I find the admitted conduct, in light of all the deliberate criminal activity preceding it, demonstrates the specific intent that another’s life is to be forfeited. The defendant’s intentional purpose was clear, both from his declarations and his actions: to prevent the bleeding victim from reaching a place of safety from which he could eventually identify defendant and cause him to be prosecuted.
While it is true in this pre-Carlos case the prosecutor argued to the jury that intent to kill was immaterial, the issue of intent was litigated pro and con through experts, as part of a diminished capacity defense. The purpose of urging defendant’s diminished capacity was to convince the jury that he could not form the required intent to kill.
Since I have pen in hand, I add a comment on the separate opinion of Justice Lucas. One can understand his affinity for the federal system, in which the trial judge conducts most if not all of the voir dire examination of prospective jurors. He appears to look with nostalgia on People v. Crowe (1973) 8 Cal.3d 815 [ 106 Cal.Rptr. 369 , 506 P.2d 193 ], in which Justice Tobriner and a majority approved that practice for California. I dissented in Crowe . Within a year the Legislature acted to repudiate the Crowe majority by amending Penal Code section 1078 to assure once again the right of counsel to conduct voir dire examination. Thus the quarrel of Justice Lucas on policy is essentially with the Legislature. Whenever abuses of juror inquiry occur, People v. Williams (1981) 29 Cal.3d 392, 408 [ 174 Cal.Rptr. 317 , 628 P.2d 869 ], provides adequate control in the trial judge to prevent incursions into irrelevancy.
On the issue at hand, I find that the errors, if any, urged by defendant are harmless within the proscription of California Constitution, article VI, section 13.
I would affirm the judgment in its entirety.