# People v. Bonin

> California Supreme Court · August 29, 1988 · 46 Cal. 3d 659

URL: https://www.frixlaw.com/law-library/cases/9622910

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. WILLIAM GEORGE BONIN, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 29, 1988
- **Citations:** 46 Cal. 3d 659; 250 Cal. Rptr. 687; 758 P.2d 1217; 1988 Cal. LEXIS 189
- **Precedential status:** Published
- **Opinion:** Concurrence
- **Judges:** Mosk
- **Cited by:** 130 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with in part by People v. Hill, 17 Cal. 4th 800 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9622910

## Opinion text

BROUSSARD, J.
I concur in the result reached by the majority opinion, but respectfully object to its discussion of penalty phase issue number 3, the prosecutor’s erroneous argument that the absence of mitigating evidence renders a factor aggravating.
People v. Davenport (1985) 41 Cal.3d 247, 289-290 [ 221 Cal.Rptr. 794 , 710 P.2d 861 ], first established that the absence of evidence of a mitigating factors does not transform it into an aggravating factor. In the present case, tried before Davenport , apparently both prosecutor and defense counsel were unaware that such a rule might be established. Thus the prosecutor incorrectly argued that mitigating factors unsupported by evidence were aggravating factors, and defense counsel did not object.
The majority begin their discussion of this issue by noting that defendant’s failure to object bars review of this issue, and that the prosecutor’s misstatement of the law cannot be characterized as misconduct. This portion of the majority’s discussion is pointless, for this court has unanimously resolved that in cases of this type it will review the merits of defendant’s contention despite trial counsel’s failure to object or the prosecutor’s putative good faith. As we explained in People v. Lucero (1988) 44 Cal.3d 1006, 1031 , footnote 15 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ], “[b]ecause this case was tried before . . . Davenport , we do not describe the prosecutor’s mistaken argument as misconduct. For the same reason, we could not treat a defense counsel’s failure to object as incompetence or waiver. Our concern is not with the ethics of the prosecutor or the performance of the defense, but with the impact of the erroneous interpretation of the law on the jury.”
The majority accordingly turn to the merits, but their discussion betrays a misunderstanding of the significance of the prosecutor’s remarks. They conclude that since the trial court directed the jury to consider the factors only “if applicable,” and since we must presume that the jury followed the instructions, we should further presume that the jurors rejected the erroneous conception urged by the prosecutor. This is nonsense. The vice of Davenport error is that it tells the jury that factors are applicable when as a matter of law they are not and that factors are aggravating when as a matter of law they are neutral or mitigating. Nothing in the judge’s instructions would dispel such erroneous impressions. The trial judge did not tell the jurors how to determine which factors were applicable, that many factors were inapplicable, or that absence of evidence to support a mitigating factor did not transform it into an applicable aggravating factor. Consequently the *711 prosecutor’s erroneous argument would not strike the jury as inconsistent with the instructions. We cannot presume that the jurors rejected a plausible prosecution argument and instead adopted a view advanced by neither court nor counsel.
Indeed the instructions to the jury to consider sentencing factors only “if applicable,” and to follow the law as stated by the judge, are standard instructions given in all capital cases. To hold that such instructions give rise to a presumption that the jury rejected erroneous prosecution argument would give the prosecutor carte blanche to argue whatever he chose. While we have sometimes found Davenport error nonprejudicial, our cases have carefully analyzed the impact of the prosecutor’s argument in light of the aggravating and mitigating evidence; none has presumed the absence of prejudice from form instructions. (See, e.g., People v. Ghent (1987) 43 Cal.3d 739, 775 [ 239 Cal.Rptr. 82 , 739 P.2d 1250 ]; People v. Allen (1986) 42 Cal.3d 1222, 1284 [ 232 Cal.Rptr. 849 , 729 P.2d 115 ].)
After making such an analysis, however, I agree with the majority that on the facts of this case the error was not prejudicial. Defendant was convicted of four murders in this case, and the penalty phase evidence showed his guilt of ten more. Under these circumstances, I do not believe it reasonably possible that, in the absence of the erroneous prosecution argument, the jury would have returned a different verdict. I therefore concur in the judgment of affirmance.
Arguelles, J., concurred.
Appellant’s petition for a rehearing was denied October 19, 1988.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9622910. Public record. Not legal advice.