People v. Mickle

MOSK, J.

I concur in the affirmance of the judgment of death and in the dismissal of the purported interlocutory appeal from the determination of mental competence. After review, I find no basis to do otherwise.

I write separately to express my views on the giving of certain instructions at the proceedings on mental competence and the introduction of so-called “victim impact” evidence at the penalty phase.

I

Unlike the majority, I conclude that the trial court erred by instructing the jury at the proceedings on mental competence, in accordance with Penal Code section 1369, subdivision (f), that “The defendant is presumed to be mentally competent, and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent. . . .” For the reasons stated in my dissenting opinion in People v. Medina (1990) 51 Cal.3d 870, 913-914 [ 274 Cal.Rptr. 849 , 799 P.2d 1282 ], I believe that such an instruction is erroneous under the due process clause of the Fourteenth Amendment to the United States Constitution, and that the contrary view of the majority in that decision is simply wrong.

*198 Reversal, however, is not required. Evidently, the error is not reversible per se, but rather is subject to harmless-error analysis under the “reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]. (People v. Medina, supra, 51 Cal.3d at p. 922 (dis. opn. of Broussard, J.).) Applying the Chapman test, I find no prejudice. Through his claim of the attorney-client privilege, which he asserted insistently, defendant must be deemed to have conceded the issue of mental competence. (Cf. People v. Gonzalez (1990) 51 Cal.3d 1179, 1267-1269 [ 275 Cal.Rptr. 729 , 800 P.2d 1159 ] (cone. & dis. opn. of Mosk, J.) [discussing harmless-error analysis under Chapman for instructional error involving mandatory conclusive presumptions, including the use of the “concession” rationale].)

II

Like the majority, I conclude that the trial court did not err by admitting at the penalty phase the testimony of “other crimes” victims Rosa, Sheba, and Lakecia relating to the effect of those offenses on their lives.

There was no error under state law.

“Under the 1978 death penalty law (Pen. Code, § 190 et seq.), the determination of punishment turns on the personal moral culpability of the capital defendant. [Citations.] Culpability is assessed in accordance with specified factors of ‘aggravation’ and ‘mitigation’ (Pen. Code, § 190.3) as construed in the case law: (a) the circumstances of the crime; (b) prior 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.” (People v. Gallego (1990) 52 Cal.3d 115, 207 [ 276 Cal.Rptr. 679 , 802 P.2d 169 ] (conc. opn. of Mosk, J.); accord, People v. Cox (1991) 53 Cal.3d 618, 702 [ 280 Cal.Rptr. 692 , 809 P.2d 351 ] (conc. & dis. opn. of Mosk, J.).)

Plainly, the defendant’s personal moral culpability depends on both the subjective guilt he incurred by committing his crime and the objective harm he caused through its commission.

I turn to the case at bar. The testimony of Rosa, Sheba, and Lakecia was admissible under state law. Of course, “evidence . . . concerning the nature and circumstances of the capital offense [and] the effect of that offense on the victim” is relevant to the material issue of the circumstances of the *199 crime. (People v. Benson (1990) 52 Cal.3d 754, 797 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ].) So too, similar evidence relating to other violent offenses— like the testimony in question—is relevant to the material issue of prior violent criminal activity. (Ibid.)

Neither was there error under the United States Constitution.

Unlike the 1978 death penalty law, which requires the imposition of a penalty that is proportionate to the defendant’s personal moral culpability, the cruel and unusual punishments clause of the Eighth Amendment merely prohibits the imposition of a penalty that is disproportionate thereto (People v. Marshall (1990) 50 Cal.3d 907, 938 [ 269 Cal.Rptr. 269 , 790 P.2d 676 ]).

In Booth v. Maryland (1987) 482 U.S. 496, 502-509 [ 96 L.Ed.2d 440, 448-452 , 107 S.Ct. 2529 ], the United States Supreme Court concluded that the introduction of evidence concerning such matters as the victim’s personal characteristics, the emotional impact of the crime on the victim’s family, and the opinions of family members about the crime and the criminal—except to the extent it related directly to the circumstances of the crime—was violative of a criminal defendant’s rights under the cruel and unusual punishments clause, and that accordingly such evidence was inadmissible per se. In South Carolina v. Gathers (1989) 490 U.S. 805, 810-812 [ 104 L.Ed.2d 876, 882-883 , 109 S.Ct. 2207 ], the court followed Booth and concluded that the presentation of argument relating to such matters was violative of those same rights and as such was improper per se.

I turn again to the present case. The testimony of Rosa, Sheba, and Lakecia was not inadmissible under the cruel and unusual punishments clause. Booth and Gathers “do not extend to evidence or argument concerning the nature and circumstances of the capital offense or the effect of that offense on the victim. . . . [Neither do they] extend to evidence or argument relating to the nature and circumstances of other criminal activity involving the use or threat of force or violence or the effect of such criminal activity on the victims . . . .” (People v. Benson, supra, 52 Cal.3d at p. 797, italics added.)

Recently, in Payne v. Tennessee (1991) 501 U.S__[ 115 L.Ed.2d 720 , 111 S.Ct. 2597 ], the court overruled Booth and Gathers to the extent that they held that evidence or argument relating to the victim’s personal characteristics or the emotional impact of the crime on the victim’s family was inadmissible or improper per se. (Id. at p__[115 L.Ed.2d at pp. 738-739, 111 S.Ct. at p. 2611 ].) It did not reach the holdings of those cases as to evidence or argument concerning the opinions of family members about the crime and the criminal. (Id. at p._, fn. 2 [ 115 L.Ed.2d at p. 739, fn. 2 , 111 S.Ct. at *200 p. 2611, fn. 2 ].) It permitted the states to allow the kind of evidence and argument at issue. (Id. at p__[ 115 L.Ed.2d at p. 736 , 111 S.Ct. at p. 2609 ].) But it did not require them to do so. (See id. at p__[115 L.Ed.2d at pp. 736-737, 111 S.Ct. at p. 2609 ].) 1

In this connection, the following observation should be made. Under the 1978 death penalty law, evidence and argument concerning the victim’s personal characteristics, the emotional impact of the crime on the victim’s family, and the opinions of family members about the crime and the criminal are generally inadmissible and improper. In the usual case at least, none of those three topics appears sufficiently relevant to any material issue. That conclusion follows from a review of the statutory aggravating and mitigating factors. It also follows from a consideration of the question that is crucial here, i.e., the defendant’s personal moral culpability. As stated above, culpability depends on both subjective guilt and objective harm. Typically, none of the three topics identified above is probative of guilt. So much is clear. But neither is any of them probative of harm. The criminal law takes account of the general injury to society as a whole that arises from crime, not the peculiar hurt suffered by any of its particular members. True, the three topics may vividly depict the latter. But they do not appreciably reveal the former.

Ill

For the reasons stated above, I concur in the affirmance of the judgment of death and in the dismissal of the purported interlocutory appeal from the determination of mental competence.

Of course, “a new [federal constitutional] rule for the conduct of criminal prosecutions”— like that of Payne—“is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” (Griffith v. Kentucky (1987) 479 U.S. 314, 328 [ 93 L.Ed.2d 649, 661 , 107 S.Ct. 708 ].)