# People v. Burton

> California Supreme Court · May 8, 1989 · 48 Cal. 3d 843

URL: https://www.frixlaw.com/law-library/cases/9597751

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. ANDRE BURTON, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** May 8, 1989
- **Citations:** 48 Cal. 3d 843; 258 Cal. Rptr. 184; 771 P.2d 1270; 1989 Cal. LEXIS 1293
- **Precedential status:** Published
- **Opinion:** Concurrence by Broussard
- **Judges:** Panelli, Broussard
- **Cited by:** 164 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/9597751

## How later opinions describe it (automated extraction)

- rejecting defendant's complaint of counsel's failure to put on a defense because "the record does not show that any defense he wished to present had credible evidentiary support"

## Opinion text

BROUSSARD, J.
I concur in the judgment to the extent it affirms the guilt verdicts and special circumstance findings. I dissent, however, from *874 the majority’s affirmance of the penalty judgment. Evidence was erroneously admitted which painted defendant as a depraved youth who had failed to profit from earlier efforts at rehabilitation. This error alone was prejudicial; the verdict is also undermined by the grave risk that the jury was misled as to its function and responsibility in determining penalty.
1. Boyd Error
I agree with the majority that the trial court erred in admitting the juvenile court commissioner’s testimony regarding juvenile court practice, juvenile facilities, and defendant’s prior juvenile adjudications. Apart from the evidence of the adjudication for attempted robbery, this evidence was inadmissible because it was not relevant to the statutory factors in aggravation. (P eople v. Boyd (1985) 38 Cal.3d 762, 775-776 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ].) I part company with the majority on the question of prejudice. We have recognized that substantial prejudice is inherent in evidence of prior uncharged crimes. (People v. Thompson (1980) 27 Cal.3d 303, 318 [ 165 Cal.Rptr. 289 , 611 P.2d 883 ].) The commissioner’s testimony showed that defendant had committed a lewd act on a child under the age of four, an offense which obviously was likely to prejudice the jury. It cannot be disputed that “evidence of sex crimes with young children is especially likely to inflame a jury.” (Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 138 [ 172 Cal.Rptr. 86 ], cited with approval in Williams v. Superior Court (1984) 36 Cal.3d 441, 452 [ 204 Cal.Rptr. 700 , 683 P.2d 699 ].) Further, the inadmissible evidence showed that defendant had a lengthy, serious criminal record. The prosecutor used the extensive juvenile record to rebut the otherwise mitigating circumstance of defendant’s youth at the time of the charged crimes. In addition, the prosecutor improperly asked the jury to draw the inference, based on the commissioner’s inadmissible testimony about the rehabilitative service which had been made available to defendant, that defendant had been offered education and rehabilitation and had refused to reform. It is not only reasonably possible, but probable that these errors affected the verdict. (See People v. Brown (1988) 46 Cal.3d 432, 448 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ].)
2. Brown Error
The trial court instructed the jury to “consider, take into account, and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. [][] If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a *875 sentence of confinement in the State Prison for life without the possibility of parole.”
In People v. Brown (1985) 40 Cal.3d 512 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], reversed on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ], we upheld our death penalty law in the face of a claim that it unconstitutionally mandated the imposition of the death penalty whenever aggravating circumstances outweighed mitigating circumstances. We recognized that a capital sentencing jury must make an individualized determination whether, given the character of the defendant and the circumstances of the crime, death is the appropriate penalty. ( 40 Cal.3d at p. 540 .) We also recognized that the jury is not simply a fact finder, but must make a moral determination whether the facts warrant the death penalty in the particular case. (Ibid.; see also People v. Myers (1987) 43 Cal.3d 250, 275-276 [ 233 Cal.Rptr. 264 , 729 P.2d 698 ].) “Moreover, the decision is the responsibility of the jury and no one else. ‘[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.’ [Citation].” (People v. Brown, supra, 40 Cal.3d at p. 540 , quoting Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329 [ 86 L.Ed.2d 231, 239 , 105 S.Ct. 2633 ].)
We recognized in Brown, supra, 40 Cal.3d 512 , that the instruction quoted above could seriously mislead the jury about the scope of its discretion and the method by which it should go about determining which penalty to impose. “Our concerns were twofold and interrelated: that a juror might understand his function as (i) merely the ‘counting’ of factors and then (ii) reaching an ‘automatic’ decision, with no exercise of personal responsibility for deciding, by his own standards, which penalty was appropriate.” (People v. Milner (1988) 45 Cal.3d 227, 256 [ 246 Cal.Rptr. 713 , 753 P.2d 669 ]; see also People v. Allen (1986) 42 Cal.3d 1222 [ 232 Cal.Rptr. 849 , 729 P.2d 115 ].) We indicated that trial courts should in the future give clarifying instructions, but that in cases tried before Brown, we would examine the case “on its own merits to determine whether, in context, the sentencer may have been misled to defendant’s prejudice about the scope of its sentencing discretion under the 1978 law.” (People v. Brown, supra, 40 Cal.3d at p. 544, fn. 17 .) We look to the record as a whole, but examine most carefully the arguments of the prosecutor to determine whether it has dispelled the ambiguity of the instruction. (See People v. Guzman (1988) 45 Cal.3d 915, 959-960 [ 248 Cal.Rptr. 467 , 755 P.2d 917 ]; People v. Milner, supra, 45 Cal.3d 227, 254-258 ; People v. Melton (1988) 44 Cal.3d 713, 761-762 [ 244 Cal.Rptr. 867 , 750 P.2d 741 ]; People v. Hendricks (1988) 44 Cal.3d 635, 652-653 [ 244 Cal.Rptr. 181 , 749 P.2d 836 ]; People v. Howard (1988) 44 Cal.3d 375, 435-436 [ 243 Cal.Rptr. 842 , 749 P.2d 279 ]; People v. Myers, *876 supra, 43 Cal.3d 250, 275-276 ; People v. Allen, supra, 42 Cal.3d at pp. 1278-1280.)
The prosecutor’s argument in this case exploited the ambiguity of the instruction, and sought to convince the jury to view itself as merely a fact finder, bound by the law to impose the death penalty if it found that aggravating factors outweighed mitigating factors. The district attorney did at one point ask the jury to do justice. However, unlike the majority, I find that the entire thrust of his argument was to persuade the jury that the law made the death penalty mandatory, and that it was the jury’s duty to impose the death penalty whether it liked it or not.
The prosecutor described the jury’s obligations under the 1978 death penalty law: “And just what is that statute? Well, what that statute does is it imposes on you, a jury, certain obligations. It permits you to make findings of fact, it permits you to make findings of gravity as to certain factors, and once you have made those—those findings of fact and/or seriousness or attenuation, mitigation, it tells you that if you find that, taking into consideration all of the factors that you will be advised of—if you find that the factors of aggravation outweigh the factors of mitigation, you shall impose the death penalty. Now, not you may, not you might, not if you would like to, but you shall impose the death penalty. [(]] And it further says that if you find that the factors of mitigation outweigh the factors of aggravation, you shall impose a penalty of life imprisonment without possibility of parole. You shall. It is mandatory. You don’t have any choice about the matter, once you make the findings of fact and of weight to be given to those findings of fact. ” (Italics added.)
The district attorney urged the jurors to remember their promise to follow the law. “You told us that you were 12 people who would follow the law. You would go where the law and the facts took you. . . . Combined with that willingness, whether you like it or not, that willingness to do a duty as difficult as that duty might be—combine that with the requirement of the law imposing upon you a duty to impose or not to impose the death penalty, depending on what the facts are, you will probably be able to live up to the standard that the—U.S. Supreme Court requires.” (Italics added.)
The prosecutor then reviewed the evidence as to each factor in aggravation and mitigation, and concluded: “As you take all these factors and weigh them, I think you are going to find, whether you like it or not, that these factors of aggravation, circumstances of the crime, background of this young man are going to lead you to impose the death penalty.” (Italics added.)
*877 The prosecutor urged the jurors to follow the law where it took them, whether they liked it or not: “I am going to ask you to follow the law and follow it where it takes you. And if it takes you to a finding of the death penalty in this case, whether you like it or not, I am going to ask you to impose the death penalty. If it takes you to life imprisonment, whether you like it or not, I am going to ask you to impose life imprisonment without possibility of parole.” (Italics added.)
As we explained in People v. Edelbacher (1989) 47 Cal.3d 983, 1037 [ 254 Cal.Rptr. 586 , 766 P.2d 1 ], the jury’s function at the penalty phase of a capital trial is a normative one. In cases tried before Brown, we examine the record for acknowledgement and explanation of this concept. (Edelbacher at p. 1037 .) Here, the prosecutor repeatedly misled the jury as to its function. He urged the jury to function as a mere fact finder, and not as the conscience of the community. As in Edelbacher , he told the jurors just to weigh the factors, and that death was mandatory if the aggravating factors predominated. He told them that they would have to impose the death penalty, whether they liked it or not, by operation of the law which made the death penalty mandatory if aggravating factors predominated. He never explained how their duty to select the appropriate penalty fit into the calculus of aggravating and mitigating circumstances, but instead, as in Milner, supra, 45 Cal.3d 227 , and People v. Farmer (1989) 47 Cal.3d 888, 928-929 [ 254 Cal.Rptr. 508 , 765 P.2d 940 ], sought to persuade the jurors that the law, not the jury, was responsible for selecting the penalty to be imposed.
The court gave no special instruction which counteracted the false impression of the law given by the prosecutor that the jury’s responsibility “was merely to weigh aggravating and mitigating factors without regard to its view of the appropriateness of the alternative penalties, and that it was ‘required’ to return a sentence of death if ‘aggravation outweighed mitigation’ without, or even despite, each juror’s personal conclusion from the evidence, about whether a sentence of death was appropriate under the circumstances for the offense and offender.” (People v. Allen, supra, 42 Cal.3d 1222, 1278 (italics in original); see also People v. Milner, supra, 45 Cal.3d at p. 257.)
This defendant, who was 19 at the time of the offenses charged in this case, presented significant mitigating evidence through his mother’s testimony. He was one of eight children, raised in poverty, whose father was murdered when he was five years old. That the family or its circumstances blighted defendant is evident; five of the eight children ended up in trouble with the law. The jury was given to understand that the circumstances in aggravation were the evidence of the charged crimes, two adult burglary convictions, four juvenile court adjudications, and the testimony of the *878 juvenile court commissioner. The law prohibited the introduction of three of the four juvenile court findings, including the most inflammatory —defendant’s commission of a lewd act on a child under the age of four. The juvenile court commissioner’s testimony regarding the opportunities the juvenile justice system had provided for education and reform was likewise irrelevant, but it surely tended to discredit defendant and diminish the impact of his mitigating evidence. The erroneously admitted evidence added prejudicial weight to the case in aggravation.
We add to this the grave risk that the jury misunderstood what use to make of the mitigating and aggravating evidence before it. It may have examined the inflated aggravating evidence and concluded that since the aggravating factors outweighed the mitigating factors, death was mandatory without regard to the appropriateness of the penalty. Since the jury was clearly misled as to its function and responsibilities in making the grave decision entrusted to it, I would reverse the penalty judgment.
Mosk, J., and Carr (Frances N.), J., * concurred.
Appellant’s petition for a rehearing was denied July 27, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
Associate Justice, Court of Appeal, Third Appellate District, assigned by the Chairperson of the Judicial Council.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9597751. Public record. Not legal advice.