People v. Boyde

*257 ARGUELLES, J., Concurring and Dissenting.

I concur in the majority opinion insofar as it affirms the judgment of guilt and the special circumstance findings but respectfully dissent insofar as it affirms the penalty judgment. In my view, the record in this case, taken as a whole, demonstrates that the jury was misled with regard to the nature of its task and the scope of its discretion at the penalty phase of the trial. (See People v. Brown (1985) 40 Cal.3d 512, 538-544 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ]; People v. Milner (1988) 45 Cal.3d 227, 253-258 [ 246 Cal.Rptr. 713 , 753 P.2d 669 ].) Accordingly, I would reverse the penalty judgment and remand for a new penalty trial before a properly advised jury.

In instructing the jury at the conclusion of the penalty phase, the trial court, after enumerating the various aggravating and mitigating factors contained in the 1978 death penalty law, advised the jury: “It is now your duty to determine which of the two penalties, death or confinement in the State Prison for life without possibility of parole shall be imposed on the Defendant. R|] After having heard all of the evidence and having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed, [fl] If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the State Prison for life without the possibility of parole. ” (Italics added.) The court gave no further instructions either elaborating on the scope of the jury’s discretion or explaining that, in weighing the aggravating and mitigating circumstances, the jury must make its own normative judgment of whether death or life without possibility of parole is the appropriate punishment under all the circumstances.

In Brown, supra, 40 Cal.3d 512, 538-544 , this court recognized that the wording of the instruction which the trial court gave in this case, although tracking the language of the 1978 statute, “leave[s] room for some confusion as to the jury’s role” in determining the appropriate penalty. ( 40 Cal.3d at p. 544, fn. 17 .) In People v. Allen (1986) 42 Cal.3d 1222, 1276-1277 [ 232 Cal.Rptr. 849 , 729 P.2d 115 ], we explained in some detail the possible confusion that may be engendered by the wording of such an instruction.

As we explained in Allen , “[o]ur concern in Brown was that the unadorned statutory instruction might in two interrelated ways lead the jury to misapprehend its discretion and responsibility, [j|] First, we pointed out that the jury might be confused about the nature of the weighing process. As we *258 observed, ‘[T]he word “weighing” is a metaphor for a process which by nature is incapable of precise description. The word connotes a mental balancing process, but certainly not one which calls for a mere mechanical counting of factors on each side of the imaginary “scale,” or the arbitrary assignment of “weights” to any of them. Each juror is free to assign whatever moral or sympathetic value he deems appropriate to each and all of the various factors he is permitted to consider.’ [Citation.] [([] Second, we were concerned in Brown that the unadorned instruction’s phrase, ‘the trier of fact. . . shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances’ . . ., could mislead the jury as to the ultimate question it was called on to answer in determining which sentence to impose. Although the quoted phrase could be understood to require a juror (i) to determine whether ‘the aggravating circumstances outweigh the mitigating circumstances’ without regard to the juror’s personal view as to the appropriate sentence, and then (ii) to impose a sentence of death if aggravation outweighs mitigation even if the juror does not personally believe death is the appropriate sentence under all the circumstances, we concluded in Brown that the statute was not intended to, and should not, be interpreted in that fashion. Instead we stated: ‘By directing that the jury “shall” impose the death penalty if it finds that aggravating factors “outweigh” mitigating, the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the “weighing” process, he decides that death is the appropriate penalty under all the circumstances. Thus the jury, by weighing the various factors, simply determines under the relevant evidence which penalty is appropriate in the particular case. ’ [Citation.]” (42 Cal.3d at pp. 1276-1277, italics added in Allen.)

Because of the potential ambiguity inherent in a jury instruction which simply tracks the statutory language, Brown indicated that in cases tried after that decision, trial courts should give clarifying instructions, explaining to the jury the full scope of its discretion and responsibility under the 1978 law as interpreted in Brown, supra, 40 Cal.3d 512 . With respect to cases, like the present matter, which were tried prior to Brown, we stated that we would examine each prior case “on its own merits to determine whether, in context, the sentencer may have been misled to defendant’s prejudice about the scope of its sentencing discretion under the 1978 law.” (Brown, supra, 40 Cal.3d at p. 544, fn. 17 .) Since Brown, we have undertaken such a review in numerous death penalty appeals. (See, e.g., Allen, supra, 42 Cal.3d 1222, at pp. 1276-1280 ; People v. Myers (1987) 43 Cal.3d 2 .50, 273-276 [ 233 Cal.Rptr. 264 , 729 P.2d 698 ]; People v. Howard (1988) 44 Cal.3d 375, 434-436 [ 243 Cal.Rptr. 842 , 749 P.2d 279 ]; People v. Hendricks (1988) 44 Cal.3d 635, 650-651 [ 244 Cal.Rptr. 181 , 749 P.2d 836 ]; People v. *259 Melton (1988) 44 Cal.3d 713, 761-762 [ 244 Cal.Rptr. 867 , 750 P.2d 741 ]; Milner, supra, 45 Cal.3d 227, 253-258 .)

The majority, of course, has undertaken such a review here, and has concluded that the jury was not misled in this case. (See, ante, pp. 252-253.) I agree with the majority that the first area of concern identified in Brown was not a problem in this case; in light of the entire record, particularly the closing arguments of both counsel, there is no reasonable likelihood that the jury thought that the “weighing” process was a “mechanical” procedure or did not realize that it could give different qualitative weight to each of the various aggravating and mitigating circumstances.

I cannot agree, however, with the majority’s conclusion that the second concern of Brown was adequately satisfied. Indeed, when the entire record is considered, I think it is rather clear that the jury in this case was misled on this second, most fundamental point, i.e., on “the ultimate question [which] it was called on to answer in determining which sentence to impose.” ( Allen, supra, 42 Cal.3d 1222, 1277 .)

As we have seen, in Brown and Allen we recognized that the crucial phrase in the 1978 law—“the trier of fact . . . shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances”—is, on its face, reasonably susceptible to varying interpretations, and “could be understood to require a juror (i) to determine whether ‘the aggravating circumstances outweigh the mitigating circumstances’ without regard to the juror’s personal view as to the appropriate sentence, and then (ii) to impose a sentence of death if aggravation outweighs mitigation even if the juror does not personally believe death is the appropriate sentence under all the circumstances . . . .” ( Allen, supra, 42 Cal.3d 1222, 1277 .) As Allen emphasized, however, “we concluded in Brown that the statute was not intended to, and should not, be interpreted in that fashion.” (Ibid., italics added.) Instead, we held in Brown that the statute “should not be understood to require any juror to vote for the death penalty unless, upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty under all the circumstances.” (Brown, supra, 40 Cal.3d at p. 541 .)

The record in this case reveals that from the very outset of the trial proceedings the jurors were repeatedly misinformed on this precise point. The source of the problem lay in the fact that both the prosecutor and the defense counsel misinterpreted the above-quoted phrase in the 1978 law in the very manner described in Allen , and proceeded on the assumption that, under the 1978 statute, each juror was not to make his or her own personal judgment of whether death was the appropriate punishment under all the *260 circumstances. Instead, both counsel believed that the law required the jurors simply to weigh the aggravating and mitigating factors without regard to their own assessment of the appropriate punishment and to impose the death penalty if aggravation outweighed mitigation.

The attorneys’ confusion on this point is evident from several quotations from the jury voir dire which appear in the majority opinion’s discussion of an entirely separate issue, the Witherspoon claim (Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ]). As the majority opinion indicates, the district attorney told one prospective juror during voir dire “that the law requires a death verdict where aggravation outweighs mitigation, ‘even if you personally don’t think the crime is worth it . . .’” (ante, p. 246), and defense counsel conveyed the same misunderstanding to the same' juror, informing her that if a juror weighed the evidence and determined that aggravation outweighed mitigation “ ‘the law mandates that you come in with a finding of death’, no matter what your personal feelings may be.’” (Ibid.)

As a review of the entire voir dire reveals, the passages quoted in the majority opinion are by no means isolated or atypical statements. 1 Throughout the lengthy voir dire process, counsel repeatedly informed potential jurors of this erroneous view of the jury’s task at the penalty phase, and repeatedly sought assurance from potential jurors that they would adhere to this understanding of their role and would resolve the question of penalty solely on the basis of whether aggravation outweighed mitigation or mitigation outweighed aggravation, without regard to the juror’s own personal view of whether death or life without possibility of parole was the appropriate punishment under all the circumstances. 2

*261 Furthermore, the prosecutor repeatedly suggested to potential jurors that one of the virtues of such a sentencing procedure was that it relieved a juror *262 of the responsibility of deciding “whether I personally think [the defendant] should die or not die” and contributed to the juror’s “peace of mind” by enabling him to view his role as simply applying the law “as it has been passed.” 3 In light of the awesome nature of the responsibility of personally determining whether death is the appropriate punishment for another individual, it is not surprising that the jurors readily agreed that they would prefer not to have to make that kind of personal moral judgment. (Cf. Caldwell v. Mississippi (1985) 472 U.S. 320, 332-333 [ 86 L.Ed.2d 231, 241-242 , 105 S.Ct. 2633 ].)

After inculcating the jurors during voir dire on this erroneous view of their sentencing role, the prosecutor reiterated this misunderstanding of the applicable principles in closing argument at the penalty phase.

At the beginning of his penalty phase argument, the prosecutor read the language of the pre-Brown instruction that the trial court subsequently gave the jury and explained to the jury: “ . . . the test is whether aggravating outweighs mitigating or mitigating outweighs aggravating. There is no requirement that I have to prove the aggravating outweighs beyond a reasonable doubt, beyond clear and convincing evidence. The test is whether, when you weigh the two, do the aggravating factors outweigh the mitigating factors or vice versa. []]] If you find that the aggravating factors outweigh, *263 and it can be a slight outweigh, it will be your obligation to return a verdict of death." (Italics added.)

Then, after discussing each of the individual factors at some length, 4 the prosecutor returned to the question of what the law required of the jury. He stated: “We went through an extensive voir dire process in this case, and you were asked specifically, I think by myself, and I think I asked each and everyone of you, can you personally go along with this, personally commit yourself to the idea that even though you may have to make a difficult and emotionally touchy decision, can you do it, a personal commitment to what the law is going to require of you . . . . [fl] The important thing is this personal commitment that you have here to be willing to follow the law and to put aside what you would like to do for your own, you know, your own feeling of feeling good about it. [ft] Well, I am asking you now to follow the law as it is given to you by the Court and apply it to the evidence as presented . . . . [fl] But, don’t try to avoid the tough decision by sitting and trying to rationalize or trying to seek a way out of a tough decision, you are going to have to face it head on, you are going to have to go through each and every one of those factors and decide it. Is this the case, is this the kind of case as I am guided by these factors that warrants the death penalty?” (Italics added.)

Although the majority opinion interprets the last quoted sentence as indicating that the prosecutor was telling the jurors to personally decide for themselves whether or not they felt that death was warranted (i.e., “appropriate”), when viewed in the context of the entire record I do not believe that that is how that sentence would have been understood by the jury. As we have seen, the prosecutor had carefully instructed the jurors during voir dire that it was “the law”—rather than the jury’s personal judgment— which determines whether the death penalty is “warranted,” and that the law mandates that death be imposed if aggravation outweighs mitigation. In this setting, I do not think that the emphasized sentence would have been viewed by the jury as contradicting all the prosecutor had previously ar *264 gued, but rather would have been understood simply as a reiteration of the prosecutor’s theme.

Indeed, the prosecutor returned to that theme once again in his rebuttal closing argument. He stated: “The next thing is, you have to understand this is not a personal decision, it is not a situation where we toss the case to you and say, ‘Hey, how do you feel today, do you want to impose the death penalty or not.’ I don’t know about you, but it is not something that I would like to do on a day-to-day basis, make that kind of decision, [ft What we said to you is here is the rule of law, here is the evidence, please apply the evidence to the rules of law and make a decision based upon what the law requires of you, same process that you went through in deciding guilt, [ft You are deciding the just punishment according to law. You’re not deciding whether I like him, don’t like him, whether it’s my decision to impose the death penalty, [ft You have been given very clear guidelines, eleven of them, to direct your decision in this case. You have taken an oath that you would be willing to do that, and that’s what you have to do.” (Italics added.)

Then, at the end of his argument, the prosecutor advised the jury: “I would suggest, as you go through this evidence and you go through each factor, that you go through them one by one and decide whether that factor aggravates or that factor mitigates, [ft If you find at the very end that every factor that you’ve heard aggravates this crime, the penalty is, obviously, apparent, it is clearly the death penalty. But, let’s say you find one factor mitigates and the other factors all aggravate. It is not a process of counting, it’s not 10 to 1, it is a process of weighing. And, you should decide whether or not that one factor in mitigation outweighs all those factors in aggravation and then decide the case, [ft And the instruction is specific on this and I don’t know if Defense Counsel is inviting you not to do this, that he is inviting you to make a decision independent of what the instruction is;[ 5 ] but, this is what your obligation is, if you conclude the aggravating circumstances outweigh the mitigating circumstances, you shall impose the sentence of death.”

*265 Viewing the record as a whole, I believe the jury in this case was clearly misled as to the scope of its discretion and the nature of its role in determining sentence. During voir dire, the potential jurors were repeatedly told that their task at the penalty phase was not to make a personal determination as to whether they thought death or life without parole was the appropriate punishment, but rather simply to determine whether the designated aggravating factors outweighed the mitigating factors. That misunderstanding of the jury’s function was not corrected by the trial court’s penalty phase instruction nor by closing argument of counsel.

Contrary to the majority’s suggestion, my conclusion that the jury was misled in this case does not rest on any “assumption] that the jury must go through two separate assessments in arriving at a penalty determination.” (Ante, p. 254.) If the jury properly understands that the weighing process is the means by which each juror determines whether he or she personally believes that death or that life imprisonment without possibility of parole is the appropriate punishment for the defendant in light of all the aggravating and mitigating factors, I have no doubt that jurors are quite capable of making an “appropriateness determination” in the course of the weighing process itself. But the jurors in this case were never instructed that the weighing process was a means for them to make such a personal appropriateness determination. Instead, they were affirmatively misinformed that it was not their responsibility to decide whether or not they personally believed that death was the appropriate punishment, and were told that, under the law, they were only to decide whether aggravation outweighed mitigation without regard to their personal view as to the appropriate penalty.

Although the majority purports to find support for its determination that the jury was not misled in the language of the 1986 revision of CALJIC No. 8.84.2 (see ante, p. 254)—an instruction that was not given to this jury—in fact that revised instruction contains a crucial passage which provides jurors with an entirely different message than the one which the prosecutor conveyed to the jurors in this case. The revised instruction specifically informs the jury that “[i]o return a judgment of death, each of you must be persuaded that the aggravating evidence (circumstances) is (are) so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole.” (Italics added.) As we have seen, the prosecutor in this case never suggested to the jurors that they had to determine whether the aggravating evidence in comparison with the mitigating evidence was “so substantial. . . that it warrants death instead of life without parole,” but on the contrary argued that if the jurors found that the aggravating factors even slightly outweighed the mitigating factors the jurors were obligated to return a verdict of death and that it was not each juror’s *266 responsibility to determine “whether it’s my decision to impose the death penalty.” 6

Under these circumstances, I conclude that the penalty judgment should be reversed and the case remanded for a new penalty trial before a jury that is properly informed as to its responsibility and discretion in determining the appropriate penalty. (See Milner, supra, 45 Cal.3d 227, 256-268 .)

Mosk, J., and Broussard, J., concurred.

Appellant’s petition for a rehearing was denied November 9, 1988. Mosk, J., Broussard, J., and Arguelles, J., were of the opinion that the petition should be granted.

At one point, the majority appears to imply that it may be improper to look to discussions between counsel and potential jurors during voir dire in determining whether or not the jurors properly understood the scope of their sentencing discretion under the 1978 law as interpreted in Brown. (Ante, pp. 254-255.) In People v. Allen, supra, 42 Cal.3d 1222, 1279-1280 , however, this court—in evaluating a Brown claim similar to that at issue here—relied on a prosecutor’s voir dire exchanges with potential jurors in finding that several comments made by the prosecutor during the penalty phase closing argument were not likely to have misled the jurors as to the scope of their sentencing discretion. If voir dire exchanges may be referred to in order to “cure” potential Brown error as they were in Allen , it is difficult to see a principled basis for refusing to consider such voir dire exchanges when they exacerbate, rather than alleviate, the potentially misleading impact of closing argument.

Excerpts from the voir dire of several jurors who were chosen to sit on the jury illustrate the point.

“Q. [District Attorney] . . . Now, the way the law is now, you are going to be given certain aggravating and mitigating factors. That’s what they are called, aggravating and mitigating.

“A. Right.

“Q. And it will be your job to evaluate the evidence presented not only at trial, but at the penalty portion, if we get there, and you will weigh the evidence and decide whether or not the aggravating circumstances outweigh the mitigating.

*261 “A. Right.

“Q. If the law directs you to a verdict of death, even though given your druthers and your idea of what the crime is worth, disagreeing with that, you are still obligated to follow the law even if the consequence is ultimately death.

“A. I understand that, also. I understand that the decision isn’t based on where I think it is appropriate.

“Q. Right.

“A. No. I understand that.

“Q. It is essentially going to be a legal decision based upon rules given to you.

“A. Right.

“Q. Any problem with that format?

“A. I personally don’t even know when it is appropriate and when the law says it is. I don’t know that. So, those cases where I feel that it is appropriate, just my own personal—my own personal feelings. So that doesn’t enter into it.

“Q. I think I come from about the same place that you do, in that I would feel uncomfortable if I didn’t have any guidelines.

“A. Uh-huh.

“Q. And I feel much better that I am told this is what is expected of me, and I think what you are telling me is you are willing to enter into that wholeheartedly, and you don’t have any reservations—

“A. No, I don’t.

“Q.—about applying the law?

“A. About applying the law, no, I don’t.”

“Q. [District Attorney] There will be a list of, I think, nine or ten factors that you will have to guide you as you approach the evidence and you will be told that if you find the factors in aggravation outweigh those in mitigation, that you shall return a verdict of death. Doesn’t say you may, doesn’t say it is one of your choices, it says you shall return a verdict of death. [<!] Any problem with that?

“A. No.

“Q. What if you are faced with a situation, though, where you personally, if you had to write on a blank slate, would not make this crime a death penalty crime, yet as you go through the factors it is clear to you that the law requires that verdict. [j¡] Can you put your own thoughts aside and follow the law?

“A. Yes, I could.

“Q. Even on a question like this, which is possibly life or death?

“A. Yes, I could put it aside.”

“Q. [District Attorney] So, what they have done is created a lot of things to look at, about nine or ten factors. And essentially what you do is you take that evidence and plug it into the factors, and if you find that the ones that make the crime worse, those that aggravate it, outweigh the others you shall return a death penalty. If you find, on the other hand, that the factors in mitigation, make it less serious, outweigh it, you shall return a verdict of life without parole, [f] Essentially, you are making a legal decision, you are trying to apply the law of the State of California, trying to do essentially the will of the people in deciding what is the appropriate penalty, what they have said to be the appropriate penalty in this case. So, it is not so much you, personally, it is what you think the law requires.

“A. Uh-huh.

“Q. I think it is a better way, I would be much more satisfied sitting as a juror in that situation, I trust you would, too. [f] But, what it may mean is it may mean that you personally if you had to do all over again, would not write the law that way. It might mean, ‘Well, I don’t think this crime deserves the death penalty,’ yet as you look at what the factors are, you may

*262 be required to return a penalty of death. [H] Can you put aside what you personally feel and follow the law even in that situation?

“A. I think I could.”

“Q. [District Attorney] . . . The situation becomes most difficult, I think, when you are dealing about a question of life and death. The question as to whether or not the Defendant should get the death penalty or should not get the death penalty. Because the way the law is set up now, it is a very strict structure, there are a list of about nine or ten factors that you are to look at in deciding whether the death penalty should be imposed or whether life without possibility of parole should be imposed. [j|] And, I believe it is quite possible that you, personally, if you were writing on a blank slate or writing the law yourself would, in a particular case, not think the death penalty was appropriate, but yet the law says it is.

“A. Uh-huh.

“Q. Will you be able to go along with the law?

“A. Yes.

“Q. Okay, this is a rule of law, not of people; and, if you substitute your personal ideas for the law, you are frustrating the will of society which you are a member of.

“A. Right.

“Q. Any problem with that idea?

“A. No.

“Q. I think it also, I don’t know, but if I was sitting on a jury such as this, for me to recognize that what I am essentially doing is apply the law as it has been passed and I am not personally deciding whether or not I like the Defendant, don’t like the Defendant, whether I personally think he should die or not die. I find it far easier or I find it, at least for my peace of mind, a better way to do it, then in fact what I am doing is applying the law.

“A. Yes, that is the same thing I was thinking, just kind of remove yourself from—

“Q. That’s right . . . .”

As the majority opinion acknowledges (ante, p. 255), in discussing the statutory factors the prosecutor erroneously told the jury that the absence of a mitigating factor constituted an aggravating factor. (See People v. Davenport (1985) 41 Cal.3d 247, 289-290 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ].) Thus, after completing his review of all of the factors up to factor (k), he told the jury: “it seems to me that before you even get to the last factor . . . you’ve got ten solid factors in aggravation, ten solid factors.”

Although the impact of this type of so-called “Davenport ” error (supra, 41 Cal. 3d 247 ) may be reduced when it is clear that the jury realizes that its task is not simply to determine whether aggravation outweighs mitigation in an “objective” abstract sense but rather to determine whether, under all the circumstances, death or life without parole is the appropriate punishment, as discussed above there is very good reason in this case to fear that the jury did not properly understand this very point. Thus, in this case, the combination of the Brown and Davenport errors resulted in an increased prejudicial effect.

At this point, the prosecutor was apparently referring to the brief comment in defense counsel’s closing argument that is quoted by the majority: “Can (k) outweigh (a) through (j)? If you find that it does, it does, and that is your choice. That is what we are asking you to do.” Although this remark may have suggested to the jury that it had the power to find that mitigation outweighed aggravation and thus to decline to impose the death penalty, defense counsel never argued that the statutory “aggravation outweighs mitigation” formulation was intended to require each juror to make his or her own normative judgment as to whether death was the appropriate punishment, and thus the quoted comment of defense counsel was vulnerable to the prosecutor’s argument that counsel was inviting the jury to make a decision “independent of’ the court’s instruction. This is particularly so since, during voir dire, defense counsel never took issue with the prosecutor’s repeated assertion that the law required the imposition of the death penalty if aggravation outweighed mitigation, without regard to the jurors’ personal views as to appropriateness of the penalty under all the circumstances.

Indeed, although the majority finds no Brown error in this case, the Attorney General has never argued that the jury was accurately informed of its proper penalty phase role under Brown, supra, 40 Cal.3d 512 . In the only post -Brown brief filed by the Attorney General, the Attorney General simply argues that Brown was wrongly decided and should be overruled. We have, of course, recently reaffirmed the Brown decision. (See, e.g., Milner, supra, 45 Cal.3d 227, 253-258 ; see also People v. Guzman (1988) 45 Cal.3d 915, 958-959 [ 248 Cal.Rptr. 467 , 755 P.2d 917 ].)