# People v. Allison

> California Supreme Court · May 11, 1989 · 48 Cal. 3d 879

URL: https://www.frixlaw.com/law-library/cases/9598057

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. WATSON ALLISON, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** May 11, 1989
- **Citations:** 48 Cal. 3d 879; 258 Cal. Rptr. 208; 771 P.2d 1294; 1989 Cal. LEXIS 1295
- **Precedential status:** Published
- **Opinion:** Concurring in part by Broussard
- **Judges:** Eagleson, Kaufman, Mosk, Broussard
- **Cited by:** 54 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/9598057

## Opinion text

BROUSSARD, J., Concurring and Dissenting.
I concur in'the affirmance of the judgment as to the guilt verdict and the special circumstance finding. I dissent from the affirmance of the penalty judgment. As Justice Mosk points out in his concurring and dissenting opinion, the trial judge failed to carry out the obligations imposed on him by Penal Code section 190.4, subdivision (e). In ruling on the automatic motion for modification of the penalty verdict, the trial judge failed to “review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3 . . . and state on the record the reasons for his findings.” (Pen. Code, § 190.4, subd. (e).)
Not only did the trial judge fail to make a record demonstrating that he had reviewed the evidence and had been guided by Penal Code section 190.3, he made statements which indicated either that he was thinking of *919 another case, or was considering evidence outside the record in ruling on this case. The judge stated: “The court believes further, in view of the criminal record of the defendant and the circumstances ... of this particular crime, there would be no basis to modify.” Actually, there was no evidence properly before the court that defendant had any criminal record. The trial judge went on: “And further, as far as the long and distinguished record of the defendant in the criminal annals of the county, I think that the defendant has now earned the verdict the jury has given him.” Again, there was no evidence properly before the court of any criminal record, long, distinguished or otherwise.
Section 190.4, subdivision (e) requires the trial court to make an independent determination of the appropriateness of the jury’s verdict in light of the relevant evidence and the applicable law. (People v. Rodriguez (1986) 42 Cal.3d 730, 793 [ 230 Cal.Rptr. 667 , 726 P.2d 113 ].) The trial court must make an adequate record to assure meaningful appellate review of its determination. (Id. at p. 794.) When there is an inadequate record, we normally remand for a new hearing. (People v. Heishman (1988) 45 Cal.3d 147, 200 [ 246 Cal.Rptr. 673 , 753 P.2d 629 ].) When the trial judge has died, we have considered whether the trial court’s error was prejudicial in light of all the evidence. (Id. at pp. 200-201.)
Since the trial judge in this case is no longer living, the majority undertake a prejudice analysis and conclude that any error in failing to make an adequate record or in considering matters outside the record was harmless. I strongly disagree. The majority rely on the judge’s rote recitation that he concluded that the verdict was warranted by the evidence and factors presented at trial to dispel the suggestion that he relied on facts outside the record for his decision. (Maj. opn., ante, at p. 911.) This, of course, does not dispel the possibility that the judge had the wrong case in mind, and was thinking of the evidence presented at some other trial.
Further, the majority weigh the facts of the crime against defendant’s relative youth and his character and background evidence, and conclude that the trial judge’s reasons for denying the motion for modification of the death verdict “. . . are self-evident from the record.” (Maj. opn., ante, at p. 912.) The majority fall into the same error as the trial judge in failing to consider defendant’s lack of a criminal record as a circumstance in mitigation. (Ibid.) The majority also fail to consider that this was an ordinary felony-murder case; certainly a serious crime, but one which sadly is also relatively common. Nothing in the circumstances of the crime in any way sets it apart as particularly aggravated. This was a case in which a trial court not improperly influenced by irrelevant factors might well have exercised its discretion under section 190.4, subdivision (e) and modified the *920 penalty verdict. Accordingly, the trial judge’s error cannot be deemed harmless. I would vacate the penalty judgment and remand the matter to the trial court for reconsideration of the motion.
Appellant’s petition for a rehearing was denied June 29, 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9598057. Public record. Not legal advice.