# People v. Brown

> California Supreme Court · August 25, 1988 · 46 Cal. 3d 432

URL: https://www.frixlaw.com/law-library/cases/9622772

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. JOHN G. BROWN, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 25, 1988
- **Citations:** 46 Cal. 3d 432; 250 Cal. Rptr. 604; 758 P.2d 1135; 1988 Cal. LEXIS 172
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Broussard, Kaufman, Lucas, Mosk
- **Cited by:** 236 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9622772

## How later opinions describe it (automated extraction)

- holding that "instructions and counsel's arguments thereon viewed as a whole, sufficiently informed the penalty phase jury it could consider a mental condition of the defendant which, though not characterized as extreme, would potentially mitigate the circumstances of the offe…

## Opinion text

MOSK, J.
I concur in the opinion of the court and especially in its reaffirmation of the so-called “reasonable-possibility” test as the appropriate standard of review for errors in the penalty phase of a capital case.
I write separately to explain why I feel compelled to adhere to that test.
In People v. Hamilton (1963) 60 Cal.2d 105 [ 32 Cal.Rptr. 4 , 383 P.2d 412 ], this court construed the mandate of article VI, section 4 Vi of the state Constitution—the predecessor of current article VI, section 13—in the context of penalty phase error. In so doing, it effectively adopted what is now termed the reasonable-possibility test. The relevant discussion is as follows.
“Article VI, section 4 1/2 of the Constitution provides that a reversal shall not follow because of error ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ In People v. Watson [(1956)] 46 Cal.2d 818, 836 [ 299 P.2d 243 ], not a death penalty case, the court after an exhaustive analysis said as to the question of guilt, ‘ . . . the test generally applicable may be stated as follows: That a “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ That test has many times been restated. As to the issue of guilt, that test is quite clear in its application. The appellate court is required to read the record, determine what errors were committed, and then try to tell from that record whether, had those errors not occurred ‘it is reasonably probable that a result more favorable to the appealing party would have been reached.’ . . .
*464 “But in deciding the effect of the errors on the penalty phase of the trial the problem is not so simple. Here, according to the mandate of section 190.1 of the Penal Code the ‘determination of the penalty of life imprisonment or death shall be in the discretion’ of the jury. There are no basic guide lines to assist the jury in coming to that determination. On the trial of the guilt issue the jury is bound by rules of law laid down by the court in its instructions. But on the penalty phase of the trial there are no such guide lines. The jury does not have to find ameliorating circumstances to impose life imprisonment, nor need it find aggravation to impose the death penalty. The choice between the two rests in the absolute, discretion of the jury. Conceivably, an error that we would hold nonprejudicial on the guilt trial, if a similar error were committed on the penalty trial, could be prejudicial. Where . . . the evidence of guilt is overwhelming, even serious error cannot be said to be such as would, in reasonable probability, have altered the balance between conviction and acquittal. But in determining the issue of penalty, the jury, in deciding between life imprisonment or death, may be swayed one way or the other by any piece of evidence. If any substantial piece or part of that evidence was inadmissible, or if any misconduct or other error occurred, . . . the appellate court by no reasoning process can ascertain whether there is a ‘reasonable probability’ that a different result would have been reached in the absence of error. If only one of the twelve jurors was swayed by the inadmissible evidence or error, then, in the absence of that evidence or error, the death penalty would not have been imposed. What may affect one juror might not affect another. . . . This being so it necessarily follows that any substantial error occurring during the penalty phase of the trial, that results in the death penalty, since it reasonably may have swayed a juror, must be deemed to have been prejudicial.” (60 Cal.2d at pp. 135-137.)
Although Hamilton was decided more than 20 years ago, its teaching, as I shall explain, is in accord with the principles of present-day Eighth Amendment jurisprudence and hence has lost none of its persuasive force.
I begin with what should be common ground. In the formulation of a standard of prejudice, “Necessarily the character of the proceeding, what is at stake upon its outcome, and the relation of the error asserted to casting the balance for decision on the case as a whole, are material factors . . . .” (Kotteakos v. United States (1946) 328 U.S. 750, 762 [ 90 L.Ed. 1557, 1565 , 66 S.Ct. 1239 ].)
As the United States Supreme Court has repeatedly emphasized, “the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because *465 of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305 [ 49 L.Ed.2d 944, 961 , 96 S.Ct. 2978 ] (opn. of Stewart, Powell, and Stevens, JJ.); accord, Caldwell v. Mississippi (1985) 472 U.S. 320, 329 [ 86 L.Ed.2d 231, 239-240 , 105 S.Ct. 2633 ]; California v. Ramos (1983) 463 U.S. 992 , 998-999 & fn. 9 [ 77 L.Ed.2d 1171, 1178-1179 , 103 S.Ct. 3446 ], citing cases; Lockett v. Ohio (1978) 438 U.S. 586, 604 [ 57 L.Ed.2d 973, 989-990 , 98 S.Ct. 2954 ] (plur. opn. by Burger, C.J.).)
In view of the qualitative difference between life and death and the consequent need for greater reliability in the determination of penalty in a capital trial, both this court and the United States Supreme Court have imposed a complex system of safeguards, peculiar to the penalty determination, in order to heighten the reliability of the outcome and thereby minimize the risk that a person may be sentenced to death even though he ought not to be. (E.g., McCleskey v. Kemp (1987) 481 U.S. 279, 299-306 [ 95 L.Ed.2d 262, 283-287 , 107 S.Ct. 1756, 1770-1774 ]; Turner v. Murray (1986) 476 U.S. 28, 33-37 [ 90 L.Ed.2d 27, 34-37 , 106 S.Ct. 1683 ] (plur. opn. by White, J.); California v. Ramos, supra, 463 U.S. at pp. 998-999 & fn. 9 [77 L.Ed.2d at pp. 1178-1179], citing cases; People v. Brown (1985) 40 Cal.3d 512, 538-544 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ], revd. on other grounds sub nom. California v. Brown (1987) 479 U.S. 538 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ]; People v. Easley (1983) 34 Cal.3d 858, 877-879 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ].)
For the same reason that these special safeguards are imposed in penalty determinations, I believe that the standard of prejudice for penalty phase errors should be that of the reasonable-possibility test. As the cases reveal, both this court and the United States Supreme Court have sought to prevent, to the extent humanly possible, the occurrence of error which might taint the penalty determination and thereby undermine its reliability. It would plainly frustrate this goal of heightened reliability if we were then to evaluate the prejudice of error actually committed—which by its nature taints the reliability of the determination in some degree—under any standard other than the strictest meaningful standard, that of the reasonable-possibility test.
In my view, the reasonable-possibility test is altogether consistent with the mandate of the state Constitution. Article VI, section 13, provides that no judgment shall be reversed in any case because of any error “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage *466 of justice.” The provision was amended into its present form in 1914, and given its present numbering in 1966. 1
In ascertaining the meaning of article VI, section 13, a court is guided by well-settled principles. It starts with the fundamental rule that “A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words.” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [ 149 Cal.Rptr. 239 , 583 P.2d 1281 ].) When, however, it cannot find the meaning of the provision in its words alone, it applies the rule that the object sought to be attained and the evil sought to be avoided are of prime consideration in the task of interpretation. (See San Francisco v. San Mateo (1941) 17 Cal.2d 814, 818 [ 112 P.2d 595 ]; In re Quinn (1973) 35 Cal.App.3d 473, 483 [ 110 Cal.Rptr. 881 ]; cf. Judson Steel Corp. v. Workers’Comp. Appeals Bd. (1978) 22 Cal.3d 658, 669 [ 150 Cal.Rptr. 250 , 586 P.2d 564 ] [construction of statutes].)
The words of article VI, section 13, do not define themselves. The point was recognized in People v. O’Bryan (1913) 165 Cal. 55, 64 [ 130 P. 1042 ], the first case to construe the provision, and has never been seriously disputed.
A consideration of the purpose of article VI, section 13, however, clearly reveals its meaning. Until the adoption in 1911 of the measure’s predecessor, appellate courts in this state applied the rule that “prejudice is presumed from any error of law.” (People v. O’Bryan, supra, 165 Cal. at p. 65 ; see generally Traynor, The Riddle of Harmless Error (1970) p. 13 [hereafter Traynor]; Saltzburg, The Harm of Harmless Error (1973) 59 Va.L.Rev. 988, 1002-1010 [hereafter Saltzburg].)
To be sure, as Professor Saltzburg has stated, “In one sense there is always a ‘presumption’ that error is harmful, since any violation of the substantive laws and procedural rules which govern the criminal justice system is likely to undercut the concepts of fairness and equality that those laws and rules are meant to preserve.” (Saltzburg, supra, 59 Va.L.Rev. at p. 1004.) Such a “presumption” is, of course, legitimate: what makes virtually all errors “erroneous” is their potential to undermine the reliability of the outcome of the proceeding in which they occur.
The presumption-of-prejudice rule that the appellate courts of this state applied before 1911, however, did not rest on such a premise. Rather, it *467 incorporated a virtually irrebuttable presumption and thereby led almost automatically to reversals based on what were perceived to be the most technical and trivial of errors. (Traynor, supra, at pp. 3-4.) For example, in the notorious case of People v. Vice (1863) 21 Cal. 344 , the court reversed a conviction for robbery on the ground that the indictment was fatally defective in failing to specify that the property taken did not belong to the defendant. In the even more notorious case of People v. St. Clair (1880) 56 Cal. 406 , the court reversed a conviction for larceny on the ground that the indictment misspelled the word “larceny” as “larcey” and thereby failed to describe an offense. Cases like these, both in California and the nation as a whole, scarcely went unnoticed but rather led to harsh criticism for the courts. (Traynor, supra, at pp. 13-14; Saltzburg, supra, 59 Va.L.Rev. at pp. 1002-1010.)
It was to abrogate the presumption-of-prejudice rule with its effect of almost automatic reversal that the predecessor of article VI, section 13, was adopted in 1911. “Where error is shown it is the duty of the court [under this provision] to examine the evidence and ascertain from such examination whether the error did or did not in fact work any injury. The mere fact of error does not make out a prima facie case for reversal which must be overcome by a clear showing that no injury could have resulted.” (People v. O’Bryan, supra, 165 Cal. at p. 65 ; see Traynor, supra, at pp. 16-17; Saltzburg, supra, 59 Va.L.Rev. at p. 1006 & fn. 58.)
Thus, both the wording and history of article VI, section 13, require the reviewing court to undertake meaningful harmless-error analysis. But neither expressly or impliedly mandates any specific standard of prejudice for any kind of error in any kind of proceeding.
Meaningful harmless-error analysis can be, and has been, conducted by courts—including this court—using the reasonable-possibility test: that standard, of course, finds a familiar expression in the beyond-a-reasonable-doubt test 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 ], (Traynor, supra, at pp. 37-49; Saltzburg, supra, 59 Va.L.Rev. at pp. 1021-1027.)
As Professor Saltzburg has explained: “Although it has been argued that this test is tantamount to a rule of automatic reversal, it must be remembered that it is a reasonable possibility of prejudice that is required, not just any possibility. ... It requires neither automatic reversal nor an abdication of judgment. Rather, by requiring the court to make a judgment as to the reasonable impact of the error, it compels the court of appeals to determine whether the criminal trial was tainted with error . . . .” (Saltzburg, supra, 59 Va.L.Rev. at pp. 1021-1022, fns. omitted and italics in original.)
*468 It is true that at the time Hamilton, supra, 60 Cal.2d 105 , was decided the jury’s discretion to choose between life and death was “absolute” (id. at p. 136), whereas now its discretion is “guided” (Barclay v. Florida (1983) 463 U.S. 939, 950 [ 77 L.Ed.2d 1134, 1144 , 103 S.Ct. 3418 ] (plur. opn. of Rehnquist, J.). But insofar as harmless-error analysis is concerned, the “guided” discretion that the jury today is constitutionally required to exercise is not significantly different from the “absolute” discretion that it formerly exercised. The Constitution, to be sure, mandates that the states “provid[e] ‘specific and detailed guidance’ to the sentencer” in order to “narrow [its] discretion to impose the death sentence . . . .” (McCleskey v. Kemp, supra, 481 U.S. at pp. 303-304 [ 95 L.Ed.2d at p. 286 , 107 S.Ct. at pp. 1772-1773], italics in original.) But “In contrast to [such] carefully defined standards . . . , the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence. ‘[T]he sentencer . . . [cannot] be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ” (Id. at p. 304 [ 95 L.Ed.2d at p. 286 , 107 S.Ct. at p. 1773], fn. omitted and italics in original.)
Moreover, such “guidelines” as are defined cannot be deemed to appreciably limit the jury’s discretion insofar as harmless-error analysis is concerned. This is so because the jurors are entitled—indeed constitutionally required—to weigh the factors established by the “guidelines” as they see fit. The Eighth Amendment “. . . ‘requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’” (McCleskey v. Kemp, supra, 481 U.S. at p. 304 [ 95 L.Ed.2d at p. 286 , 107 S.Ct. at p. 1772 ]; accord, Zant v. Stephens (1983) 462 U.S. 862, 879 [ 77 L.Ed.2d 235, 251 , 103 S.Ct. 2733 ].) It follows that the jury is “free to reject death if it decides on the basis of any constitutionally relevant evidence or observation that it is not the appropriate penalty.” (People v. Brown, supra, 40 Cal.3d at p. 540 .)
As one commentator has said: “The sentencer is free to consider any factor in mitigation, in whatever way it chooses, and to impose mercy if it so desires. But, in considering aggravating circumstances, the sentencer must look only to those that are defined by statutes.” (Note, Deadly Mistakes: Harmless Error in Capital Sentencing (1987) 54 U.Chi.L.Rev. 740, 754 [hereafter Note, Deadly Mistakes].)
Accordingly, in view of the character and purpose of the sentencing “guidelines” and the nature of the penalty determination, and especially in view of the jury’s absolute discretion to choose life, it is plain that a review *469 ing court is today no better able to determine the basis of a jury’s penalty decision or the effect of a particular error on that decision than it was in the days of Hamilton, supra, 60 Cal.2d 105 , when the jury had absolute discretion to choose either life or death.
Indeed, it has been argued with considerable persuasive force that under the requirements of modern Eighth Amendment jurisprudence principled harmless-error analysis is impossible and hence that all penalty phase error must be deemed reversible per se. (Cf. Satterwhite v. Texas (1988) 486 U.S. 249 , _ [ 100 L.Ed.2d 284, 297 , 108 S.Ct. 1792, 1799 ] (conc. opn. of Marshall, J.) [“the unique nature of a capital sentencing determination should cause this Court to be especially hesitant ever to sanction harmless-error review of constitutional errors that taint capital sentencing proceedings”].)
In the words of one commentator: “[H]armless error doctrine requires reviewing courts, upon finding an error in the proceedings below, to determine what the sentencer would have done if there had been no error. The appellate court must decide what the result of the trial would have been if the sentencer had heard a different bundle of evidence. This process is ill-suited to capital sentencing review.
“First, where aggravating evidence has been erroneously admitted, the reviewing court must decide whether or not the sentencer would have sentenced the defendant to death without knowledge of this evidence. This assessment is, to be sure, somewhat similar to the determination of harmlessness in noncapital cases: both must look to specific statutorily defined factors. But in a capital case, the sentencer has the freedom to decide how much importance to attach to aggravating circumstances; it may decide, on the basis of its observations at trial, that the aggravating circumstances are not very serious. Thus, the statutory definitions of aggravating circumstances act as only a partial constraint on the decision of the sentencer in a capital case: the sentencer may find some aggravating circumstances and yet still choose not to impose a death sentence. In noncapital cases or in the guilt phase of a capital case, on the other hand, the tribunal’s choice is constrained as soon as it finds that the statutorily defined elements of a crime are present.
“Furthermore, where mitigating evidence has been erroneously withheld, the reviewing court cannot determine what the outcome would have been if the sentencer had heard this evidence. The sentencer had discretion to impose mercy if it so chose. It is one thing to say that an appeals court working from a cold record finds it congenial to decide what a ‘reasonable’ juror would have done in a particular circumstance; it is quite another to say that the same court can decide what a ‘merciful’ juror would have done. *470 The decision of the sentencer—be it jury or judge—ratifies ‘community values’ that a distant reviewing court can neither duplicate nor, perhaps, understand. Since the sentencer must have discretion to spare a defendant from execution, and that discretion contemplates acts of mercy, it is not only anomalous, but also impossible, for reviewing courts to undertake the rational inquiry outlined by Chapman [v. California (1967) 386 U.S. 18 ( 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 )].
“Finally, even if the reviewing court were able to predict the effect of the error with regard to a particular aggravating or mitigating factor, it still would not be able to carry out the harmless error test. The state (or the defendant, if the error is nonconstitutional) must show that the aggravating evidence outweighs the mitigating evidence. But it is the sentencer that decides how much weight to give to the aggravating and mitigating factors, and that decision is not amenable to appellate review. Because the sentencer may—indeed, must—consider all factors in whatever balance it chooses in deciding upon the sentence, the appellate court cannot determine either beyond a reasonable doubt or with a reasonable certainty what impact the aggravating or mitigating factor would have had on the decision.
“Thus, the sentencer’s discretion and its ability to impose mercy make it impossible for a reviewing court to weed out ‘harmless’ error in capital sentencing proceedings. The reviewing court is simply unable to assess the impact of any error on the sentencer—both because of uncertainty over the error’s place in the sentencer’s deliberations and because of the sentencer’s ability to impose life imprisonment instead of death whenever it chooses. When there is error, therefore, death sentences must be reversed. The premise of the harmless error doctrine is that the impact of errors on trial and sentencing courts can be assessed by appellate courts. Where this assessment is impossible, the doctrine should not apply.” (Note, Deadly Mistakes, supra, 54 U.Chi.L.Rev. at pp. 754-756, fns. omitted and italics in original.)
While the foregoing argument has considerable persuasive force, the undeniable fact is that it has not won acceptance. Hence, modern Eighth Amendment jurisprudence cannot be held to preclude harmless-error analysis. (See Satterwhite v. Texas, supra, 486 U.S. at p._ [100 L.Ed.2d at pp. 293-294, 108 S.Ct. at pp. 1797-1798].) But as I have explained, the principles of that jurisprudence counsel use of the standard for the review of penalty phase error that we adhere to today—the reasonable-possibility test. Anything less would force a reviewing court to run a constitutionally unacceptable risk of affirming a judgment against a human being for whom death may not be the appropriate penalty.
For the foregoing reasons, I concur in the opinion of the court, which reaffirms the reasonable-possibility test.
The predecessor of article VI, section 13, adopted in 1911 as article VI, section 4V4, applied only to criminal cases but was otherwise substantially identical.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9622772. Public record. Not legal advice.