People v. Fauber

MOSK, J.

I concur in the judgment. After review, I have found no reversible error or other defect.

I write separately because I believe that the trial court may have erred when it granted the People’s motion to exclude evidence of plea bargaining at the penalty phase—specifically, evidence that they had offered, and defendant had rejected, an opportunity to plead guilty to first degree murder under special circumstances and receive a sentence of life imprisonment without possibility of parole in exchange for testimony against Brian Buckley and Christopher Caldwell. The court found the People’s offer irrelevant in and of itself. By contrast, it found defendant’s rejection relevant, but substantially more prejudicial than probative. In my view, each determination is open to question.

To begin with, the People’s offer of the plea bargain is arguably relevant: it bears on the circumstances of the offense broadly defined. This conclusion is plainly consistent with the Eighth Amendment of the Federal Constitution. It appears practically compelled under Penal Code section 190.3. The statutory provision declares that evidence of the “circumstances” of the offense are admissible at the penalty phase. In People v. Edwards (1991) 54 Cal.3d 787, 833 [ 1 Cal.Rptr.2d 696 , 819 P.2d 436 ], this court held that the scope of the term extends beyond the “immediate temporal and spatial” context of the crime to *“[t]hat which surrounds [it] materially, morally, or logically’ . ...” A plea bargain involving a crime must “logically surround” the crime. The proposition is virtually tautological: a disposition concerning an offense concerns the offense. To be sure, the evidence does not seem strongly relevant. But it does seem relevant to some degree.

Next, defendant’s rejection of the plea bargain is arguably not substantially more prejudicial than probative. As the trial court itself recognized, the evidence is indeed relevant: in conjunction with testimony defendant proffered on his reasons for refusing the offer, it has some tendency to show his character for loyalty to those he considered his friends. Character, of course, *869 is a material issue in mitigation under Penal Code section 190.3 (see, e.g., People v. Boyd (1985) 38 Cal.3d 762, 772-776 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ]) and the Eighth Amendment (see, e.g., Skipper v. South Carolina (1986) 476 U.S. 1, 4 [ 90 L.Ed.2d 1, 6-7 , 106 S.Ct. 1669 ]). This evidence, too, does not seem strongly relevant. But neither does it appear particularly mischievous. Therefore, it cannot be deemed more prejudicial than probative—and certainly not substantially so.

Although the trial court may have erred under both California law and the United States Constitution when it granted the People’s motion to exclude the evidence of plea bargaining, reversal would not be required. The actual —and proper—focus of the penalty phase was defendant and his capital crime. As noted, the evidence in question does not seem strongly relevant. Hence, it would have added little, if anything, of marginal value. Therefore, any error could not have affected the outcome within any reasonable possibility, and must be held harmless beyond a reasonable doubt. (People v. Ashmus (1991) 54 Cal.3d 932, 965 [ 2 Cal.Rptr.2d 112 , 820 P.2d 214 ] [stating the standards for prejudice for federal constitutional error and for state-law error bearing on penalty in a capital case].)

In conclusion, having found no reversible error or other defect, I concur in the judgment.

Appellant’s petition for a rehearing was denied September 3, 1992.