People v. Stansbury

MOSK, J., Concurring and Dissenting.

I have viewed with growing concern the capital cases under our review in which the defendant has been permitted to represent himself. I have become convinced that because of the interest of society in obtaining a reliable verdict at the guilt and penalty phases of a capital trial, the defendant should not be permitted to waive counsel and represent himself if there is the slightest doubt of his competence to undertake this awesome task in a way that discharges society’s interest, as well as his own. (People v. Clark (1992) 3 Cal.4th 41, 174 [ 10 Cal.Rptr.2d 554 , 833 P.2d 561 ] (dis. opn. of Mosk, J.).)

In this case, the defendant appears to be an obstreperous and cunning fool. He made it clear that his original intention was to defend in this complex circumstantial case by deliberately pointing to his prior convictions for violent sex crimes and then arguing that he had been framed because of his record. His assistant counsel and the court urged him in strong terms to abandon this strategy, since a reference to his egregious record at the guilt trial would spell his doom; any doubt the jury had about the strength of the prosecutor’s case would likely evaporate. In fact, defendant did not ultimately employ this strategy, and assistant counsel maintained a hand in the defense.

Defendant now complains that the court deprived him of the right to present the defense in his own way. My years, as a trial judge, an Attorney General and nearly three decades on this court have convinced me that a defendant facing the gas chamber possesses no objectivity and little competence to act as his own counsel. Here, however, the trial court properly tempered the defendant’s ability to commit judicial suicide at the guilt trial by urging him to listen to assistant counsel, and by threatening to revoke his pro se status when the defendant petulantly declared he would stand mute. Because I see the hand of the court and counsel in the presentation of the defense, I would not, as I have in other cases, urge the reversal of the guilt verdict. (Compare People v. Clark, supra, 3 Cal.4th at p. 174 (dis. opn. of Mosk, J.).)

The penalty judgment, however, should be reversed.

*1074 Defendant is a manipulator who decided, contrary to the advice of his assistant counsel, to present no evidence or argument in mitigation at the penalty trial. No mitigating evidence had previously been presented at the guilt trial. Throughout the trial defendant expressed the intention to seek the death penalty if the jury found him guilty. He bitterly chastised assistant counsel and his investigators for pursuing any case in mitigation in preparation for the penalty trial. At the 11th hour he sought a 4- to 6-week continuance so that he could contact a witness to a 20-year-old crime and seek his admission that he, the witness, had committed the sex offenses of which defendant had been convicted. Defendant still maintained that he was seeking the death penalty, but wanted the evidence to be accurate. The trial court properly denied the motion for continuance; defendant had more than two years to find the witness. The record is absolutely clear that defendant stubbornly prohibited the presentation of any evidence in mitigation at the penalty trial. There is no indication that defendant was mentally impaired at the time of trial.

Having no sympathy with the efforts of the defendant to manipulate the legal system, and no question that the prosecutor, assistant counsel, defendant’s investigators and the court made every effort to conduct a fair penalty trial in the face of defendant’s obduracy, nevertheless I still would reverse the penalty verdict.

We should be concerned, not merely with the defendant, who appears on this one-sided record to be a despicable human being, but with the interest of society. It is society that is being asked to forfeit his life. I cannot find that our social interest in a reliable penalty verdict is safeguarded in a case in which none of the available evidence and no arguments are presented on defendant’s behalf. (U.S. Const., Eighth Amend.; Cal. Const., art. I, § 17; People v. Deere (1985) 41 Cal.3d 353, 360-368 [ 222 Cal.Rptr. 13 , 710 P.2d 925 ]; see also People v. Diaz (1992) 3 Cal.4th 495, 577 [ 11 Cal.Rptr.2d 353 , 834 P.2d 1171 ] (conc. & dis. opn. of Mosk, J.); People v. Howard (1992) 1 Cal.4th 1132, 1197 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ] (conc. & dis. opn. of Mosk, J.); People v. Sanders (1990) 51 Cal.3d 471, 531-533 [ 273 Cal.Rptr. 537 , 797 P.2d 561 ] (dis. opn. of Mosk, J.); People v. Clark (1990) 50 Cal.3d 583, 639-641 [ 268 Cal.Rptr. 399 , 789 P.2d 127 ] (conc. & dis. opn. of Mosk, J.); People v. Lang (1989) 49 Cal.3d 991, 1059-1062 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ] (conc. & dis. opn. of Mosk, J.); People v. Bloom (1989) 48 Cal.3d 1194, 1236-1245 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ] (conc. & dis. opn. of Mosk, J.); People v. Williams (1988) 44 Cal.3d 1127, 1158-1161 [ 245 Cal.Rptr. 635 , 751 P.2d 901 ] (conc. & dis. opn. of Mosk, J.).)

There is no question that some mitigating evidence was available and could have been presented. The record reveals that assistant counsel and *1075 defense investigators had obtained potential mitigating evidence from family members, friends and former employers who were available to say “good things” about defendant. Assistant counsel told the court at the hearing on the automatic motion for modification that “Mr. Stansbury did have a very very hard childhood, a rough childhood where he was not living with a parent or parents for a long period of time. [j[] He was incarcerated and confined in the juvenile institutions from a very very young age. H] He has suffered some considerable amount of ill health, including the loss of his leg. [f] He has a great deal of bitterness against people because of those early years.”

It is entirely defendant’s fault that no evidence or argument was presented to the jury, but the consequence of his machinations was that 12 conscientious citizens had to decide whether he should live or die without being provided any reason to extend society’s gift of mercy. While I agree with the majority that the prosecutor did not exploit ambiguity in the jury instructions in a way that would mislead the jury, the instructions themselves really made no sense in the context of this case. The references to weighing the aggravating against the mitigating factors, and to the mitigating evidence that defendant might proffer, were essentially meaningless because of the lack of a single piece of mitigating evidence. No jury should be placed in such an untenable position, and no death judgment based on such an unbalanced proceeding should be carried out.

I would remand for a new penalty trial at which defendant would be required to be represented by counsel who would have full control over the development and presentation of a case in mitigation. (See People v. Clark, supra, 50 Cal.3d at p. 641 (cone. & dis. opn. of Mosk, J.).)

Appellant’s petition for a rehearing was denied May 26, 1993, and the opinion was modified to read as printed above.