People v. Bacigalupo

MOSK, J.

I concur in the judgment. After review, I have found no error warranting reversal.

I write separately to address an issue that underlies many penalty phase claims, in this case and in others.

There is a question whether the standard instructions that the trial court typically gives the jury on the determination of penalty are adequate to apprise the panel as to the nature of its task in situations in which evidence or argument is offered that presses against the limits of what is material to the choice of life or death.

Until recently, I believed that the answer should generally be affirmative.

Now, faced with what is likely to be the practically unimpeded introduction of so-called “victim impact” evidence and argument (see Payne v. Tennessee (1991) 501 U.S. _ , [ 115 L.Ed.2d 720, 726-739 , 111 S.Ct. 2597, 2601-2611 ]; People v. Edwards (1991) 54 Cal.3d 787, 832-833 [ 1 Cal.Rptr.2d 696 , 819 P.2d 436 ])—which always threatens to pass the bounds of materiality and often does so—I am somewhat doubtful.

Accordingly, I would henceforth require the trial court to fully and clearly instruct the jury on the principles underlying the penalty determination. (See *153 generally People v. Mickle (1991) 54 Cal.3d 140, 198 [ 284 Cal.Rptr. 511 , 814 P.2d 290 ] (conc. opn. of Mosk, J.); People v. Cox (1991) 53 Cal.3d 618, 702-703 [ 280 Cal.Rptr. 692 , 809 P.2d 351 ] (conc. & dis. opn. of Mosk, J.); People v. Gallego (1990) 52 Cal.3d 115, 207-209 [ 276 Cal.Rptr. 679 , 802 P.2d 169 ] (conc. opn. of Mosk, J.); and authorities cited therein.) Such instructions should include the following matters.

Under the 1978 death penalty law, the determination of punishment turns on the personal moral culpability of the capital defendant.

Such culpability is assessed in accordance with specified factors of “aggravation” and “mitigation”: (a) the circumstances of the crime; (b) other violent criminal activity; (c) prior felony convictions; (d) extreme mental or emotional disturbance; (e) victim participation or consent; (f) reasonable belief in moral justification or extenuation; (g) extreme duress or substantial domination; (h) impairment through mental disease or defect or through intoxication; (i) age; (j) status as an accomplice and minor participant; and (k) any other extenuating fact.

For purposes here, “aggravation” means that which increases the defendant’s personal moral culpability above the level of blameworthiness that inheres in the capital offense. By contrast, “mitigation” means that which reduces his culpability below that level.

Thus, the circumstances of the crime itself can be either aggravating or mitigating. Their character depends on the greater or lesser blameworthiness they reveal—ranging, for example, from the most intentional of willful, deliberate, and premeditated murders to the most accidental of felony murders.

Other violent criminal activity is similar. Its presence is aggravating, suggesting as it does that the capital offense is the product more of the defendant’s basic character than of the accidents of his situation. Its absence is obviously mitigating, carrying the opposite suggestion.

So too prior felony convictions. Their existence is aggravating. They reflect on the relatively greater contribution of character than situation. Moreover, they reveal that the defendant had been taught, through the application of formal sanction, that criminal conduct was unacceptable—but had failed or refused to learn his lesson. By contrast, the nonexistence of such convictions plainly is mitigating.

The age of the defendant can also be either aggravating or mitigating. It is a metonym for a congeries of facts that bear on culpability.

*154 The existence of any of the following circumstances, however, is mitigating and mitigating only: extreme mental or emotional disturbance; victim participation or consent; reasonable belief in moral justification or extenuation; extreme duress or substantial domination; impairment through mental disease or defect or through intoxication; status as an accomplice and minor participant; and any other extenuating fact By contrast, the nonexistence of any of these circumstances is not and cannot be aggravating. The absence of mitigation does not amount to the presence of aggravation.

I am of the view that if the trial court instructs the jury on the foregoing matters, it will adequately inform the panel of the nature of the penalty determination—and may even avoid or at least minimize the harm of “victim impact” evidence or argument.

In conclusion, because I have found no error warranting reversal, I concur in the judgment.

Appellant’s petition for a rehearing was denied January 30, 1992.