People v. Brown

LUCAS, J., Concurring and Dissenting.

I concur in the judgment to the extent it affirms defendant’s murder conviction and the finding of special circumstances.

I likewise concur in the majority’s conclusion that the 1978 death penalty law is constitutional. 1 Under that law, as the majority recognizes, the sentencer (whether judge or jury) is expressly directed to consider all mitigating or extenuating evidence presented at trial. (See Pen. Code, § 190.3, subd. (k); People v. Frierson (1979) 25 Cal.3d 142, 178 [ 158 Cal.Rptr. 281 , 599 P.2d 587 ].) Thus, defendant’s contention that the 1978 law fails to permit full consideration of mitigating circumstances is meritless. Similarly, the majority properly rejects the argument that the 1978 law constitutes an invalid mandatory sentencing scheme. Under our law, the sentencer has broad discretion to consider the various aggravating and mitigating factors and to base the penalty decision upon a weighing of those factors. Although the law provides that the sentencer “shall” choose a death sentence when the aggravating circumstances outweigh the mitigating ones, ample sentencing discretion is preserved by the breadth of the weighing process itself.

I am troubled, however, by the suggestion or implication in the majority opinion regarding the possible insufficiency of the jury instructions which heretofore have been given in capital cases. Appeals are presently pending *547 in our court involving approximately 170 judgments of death, most of which were rendered on the basis of identical, standardized jury instructions. (See CALJIC Nos. 8.84.1, 8.84.2.) The majority herein suggests that these instructions (based on the very language of the 1978 death penalty law which the majority finds constitutional) “leave room for some confusion as to the jury’s role.” (Ante, p. 544, fn. 17.) Accordingly, the majority directs the trial courts in future death cases to supplement these instructions and clarify the scope of the jury’s discretion and responsibility. (Ibid.) Ominously, the majority elects to “pass no judgment here upon the validity of death penalty verdicts previously rendered without benefit” of such clarifying instructions. (Ibid.) The majority calls for a case-by-case analysis to determine whether in a particular case “the sentencer may have been misled to defendant’s prejudice . . . .” (Ibid.)

We would place an intolerable and unjustified burden upon the judicial system were we to reverse 170 death judgments merely because of possible “confusion” regarding the meaning of standardized jury instructions which, in my view, are sufficiently clear to guide the jury in its penalty determination. It is conceivable, of course, that in a particular case the record will establish that, by reason of the language of the 1978 law, or instructions based thereon, a particular judge or jury clearly misunderstood and misapplied its sentencing responsibilities. Such a case seemingly would be quite rare, and on a silent record we must presume that the sentencer properly discharged its statutory duties. Reversible error could not be posited solely upon mere prosecutorial argument misstating the nature of the sentencing process, at least in the absence of some affirmative indication that the jury was thereby misled. Moreover, a defendant’s failure to object to such an argument or to request an appropriate admonition would prevent our consideration of any asserted error or misconduct. (People v. Green (1980) 27 Cal.3d 1, 27 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ].)

Aside from these substantial reservations or misgivings regarding the effect of today’s decision upon the 170 automatic appeals now pending before us, I concur with the majority opinion’s constitutional analysis.

I dissent, however, to the reversal of the penalty of death under People v. Lanphear (1984) 36 Cal.3d 163, 166 [ 203 Cal.Rptr. 122 , 680 P.2d 1081 ], and People v. Easley (1983) 34 Cal.3d 858, 876 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ]. For the reasons stated by Justices Mosk and Richardson in their dissenting opinions in those cases, I believe that any error in cautioning the penalty jury not to be swayed by “sympathy” for the defendant is, at worst, harmless error. Accordingly, I would affirm the judgment in its entirety.

I also fully concur with the majority’s decision to reach the constitutional issue at this time. The 1978 death penalty law has been “on the books” for nearly seven years and has produced approximately 170 judgments of death currently on appeal with this court. New trials are commencing daily. Accordingly, the trial courts throughout the state, as well as the trial court which will retry this defendant, sorely need to know of any constitutional defects we discern in the 1978 law or the jury instructions based thereon. In my view, it would be most unfortunate for the bench, the bar, the people of this state, and the defendant himself, were we to continue to withhold such guidance merely because the defendant’s conviction must be reversed on some other ground.