People v. Bigelow

BIRD, C. J., Concurring and Dissenting.

I write separately to articulate my concern about the treatment of other-crimes evidence which is inadmissible on guilt but admissible on a special circumstance allegation. With all due respect, how will justice be served by permitting a guilt-phase jury to consider inadmissible evidence on the assumption that the jury will follow the court’s instruction to put it out of mind in the guilt phase only to res *757 urrect it for consideration of the special circumstance allegation? What a Herculean task!

Further, the majority’s interpretation of the kidnaping-murder special circumstance (Pen. Code, § 190.2, subd. (aXlVXii)) 1 is questionable. In spite of the unambiguous 1978 amendment to that statute requiring proof of both simple and aggravated kidnaping, the majority read the statute to make proof of either simple or aggravated kidnaping sufficient to render an accused eligible for the death penalty. Rewriting clear and unambiguous statutes, I submit, is not a proper role for this court.

I.

The majority promulgate a new rule that evidence “relevant only to a special circumstance should be accompanied by a jury instruction limiting its use.” If the evidence is “highly prejudicial,” the trial courts are to “exclude it at the guilt trial and conduct a separate trial of the special circumstance allegations.” (Maj. opn., ante, at p. 748, fn. omitted.)

I respectfully dissent from this procedure. Why should a jury be asked to consider inadmissible evidence? A simple and straightforward rule requiring the bifurcation of the guilt and special circumstance phases of the trial would cure the problem.

In the past, this court has recognized that “[t]he admission of any evidence that involves crimes other than those for which a defendant is being tried has a ‘highly inflammatory and prejudicial effect’ on the trier of fact.” (People v. Thompson (1980) 27 Cal.3d 303, 314 , fn. omitted [ 165 Cal.Rptr. 289 , 611 P.2d 883 ].) Such evidence “is to be received with ‘extreme caution,’ and all doubts about its connection to the crime charged must be resolved in the accused’s favor.” (People v. Alcala (1984) 36 Cal.3d 604, 631 , citations omitted [ 205 Cal.Rptr. 775 , 685 P.2d 1126 ]; see also People v. Durham (1969) 70 Cal.2d 171, 186 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ].) These observations teach us that any rules governing the admission of other-crimes evidence should be fashioned with an eye toward eliminating potential prejudice and later reversal.

While limiting instructions have been utilized to minimize the degree of prejudice that flows from the introduction of other-crimes evidence, these instructions are not panaceas. As Justice Jackson once wrote, “[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury, ... all practicing lawyers know to be unmitigated fiction.” (Krule *758 witch v. United States (1949) 336 U.S. 440, 453 [ 93 L.Ed. 790, 799 , 69 S.Ct. 716 ] (conc, opn.).) This court has observed that limiting instructions appear to call for “ ‘discrimination so subtle [as to be] a feat beyond the compass of ordinary minds.’ ” (People v. Antick (1975) 15 Cal.3d 79, 98 [ 123 Cal.Rptr. 475 , 539 P.2d 43 ].) For these reasons, alternative procedures are preferred. They have the added advantage of avoiding future reversals.

In a capital case, evidence of other crimes is relevant when proving up a special circumstance but often irrelevant as to the guilt or innocence of the accused. In that situation, bifurcation of the two phases is a preferable alternative to the use of limiting instructions. That procedure, easily implemented, does not offend the rights of the state or the defendant. Further, it ensures judicial efficiency.

Section 190.1 sets forth the procedure for the trial of guilt and special circumstance allegations. That section provides that “[t]he question of the defendant’s guilt shall first be determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to [section 190.2, subdivision (a)(2) (involving a prior conviction of murder)].” (§ 190.1, subd. (a).) The statute appears to contemplate the determination of special circumstances at the “same time” as guilt. However, this language follows on the heels of a provision which directs that guilt “shall first be determined.” Surely, a trial court would have the authority to bifurcate the guilt and special circumstance phases in order to avoid any prejudice. 2

This procedure would in no way contravene the statutory preference that the same jury determine guilt and special circumstances. (§ 190.4, subd. (c); cf. §§ 1025, 1093; People v. Bracamonte (1981) 119 Cal.App.3d 644, 652-653 [ 174 Cal.Rptr. 191 ]; People v. Wojahn (1984) 150 Cal.App.3d 1024, 1034 [ 198 Cal.Rptr. 277 ] [proof of guilt and prior convictions].) *759 Since even that preference is subject to an exception, 3 bifurcation, a less drastic alternative, is available as a means of avoiding the introduction of prejudicial evidence at a particular phase of the proceedings.

Bifurcation would also serve judicial economy. If an accused were acquitted of the first degree murder charge or convicted of a lesser offense, no resources would be expended in litigating the admissibility of other-crimes evidence, since no special circumstance phase would be involved. If the accused were found guilty of first degree murder, no questions about the meaning of limiting instructions would be raised, since bifurcation would eliminate the need for any explanatory instructions on that subject.

Finally, the bifurcation procedure would not impair the prosecution’s case. The procedure would be available only when other-crimes evidence, inadmissible as to guilt, is offered in support of a special circumstance allegation. Just as the prosecution may not withhold a stipulation as to the ex-felon status of an accused in a prosecution for possession of a firearm unless the stipulation would legitimately impair its case (People v. Hall (1980) 28 Cal.3d 143, 156-157 [ 167 Cal.Rptr. 844 , 616 P.2d 826 ]), it may not place evidence before a jury at a stage where such evidence has no admissible purpose.

A bifurcation procedure has been adopted in an analogous context. In People v. Bracamonte, supra, 119 Cal.App.3d 644 , the court held that an accused is entitled, upon request, to a bifurcated proceeding on the truth of prior convictions which have been alleged for the purpose of enhancing the sentence. Such a rule was found to be appropriate in view of (1) the high potential for prejudice inherent in evidence of prior criminal activity, and (2) the absence of practical obstacles which might require a unitary procedure. (I d., at pp. 651-655.) That court’s reasoning is applicable in the present context.

Despite these considerations, the majority enunciate a dual standard for courts to follow. With one exception, the majority adhere to the unitary procedure of a single guilt and special circumstance phase and dictate that instructions limiting the jury’s consideration of other crimes evidence *760 should be given. Where the evidence of other crimes is “highly prejudicial,” bifurcation is permitted. (Maj. opn., ante, at p. 748, fn. omitted.)

While the majority’s partial rule of bifurcation is a step in the right direction, the “highly prejudicial” line of demarcation is too indefinite. That standard may lead to confusion and inconsistency. Courts may have widely varying views on whether and in what circumstances other-crimes evidence is “highly prejudicial.”

The rules governing the admissibility of other-crimes evidence are well-established. The definition of what is “highly prejudicial” is not. Since bifurcation of the guilt and special circumstances phases can be accomplished with relative ease, I see no reason to promulgate a rule whose application will be unclear.

II.

The majority also hold that a felony-murder special circumstance finding is permitted if the accused is found to have committed kidnaping under section 207 or section 209. The clear statutory language that proof of both is required is ignored. (Maj. opn., ante, at pp. 754-756.) Although the 1978 amendment is not a model of clarity, I do not believe that the amendment can be rendered a nullity on the ground that the drafters of that provision were careless in choosing their words. (Maj. opn., ante, at pp. 755-756.)

As the majority note, the 1977 death penalty law provided a special circumstance for a murder which occurs during the commission or attempted commission of several felonies, including “[kjidnapping in violation of Section 207 or 209. ...” (Former § 190.2, subd. (c)(3)(ii), italics added.) The 1978 amendment changed the language to the conjunctive, specifying “[kjidnapping in violation of Sections' 207 and 209.” (§ 190.2, subd. (a)(17)(ii), italics added.) Since the amendment is clearly “‘“a material change in the language” ’ ” (Loew’s, Inc. v. Byram (1938) 11 Cal.2d 746, 750 [ 82 P.2d 1 ]), it must be given effect. 4 I do not believe that the change can be disregarded as an unintended slip of the drafters’ pen, especially *761 when an individual’s eligibility for capital punishment hinges on its precise meaning. 5

In this case, the jury was instructed only on simple kidnaping under section 207. After finding appellant guilty of that crime, the jury sustained the special circumstance allegation that the murder was committed while appellant was engaged in the commission of “kidnapping, a violation of Section 207 of the California Penal Code.” Since the jury did not find that the killing occurred during the commission of kidnaping under section 209, the verdict was insufficient to sustain a felony-murder special circumstance allegation.

Respondent’s petition for a rehearing was denied February 6, 1985, and the opinion was modified to read as printed above. Bird, C. J., and Lucas, J., were of the opinion that the petition should be granted.

All statutory references are to the Penal Code.

There is some ambiguity in the precise meaning of the “same time” language found in section 190.1, subdivision (a). The statute does not require that guilt and special circumstance allegations be tried simultaneously. Assuming that the directive to “first determinen” the “question of the defendant’s guilt” contemplates both the presentation of evidence on and the resolution of that issue, then the trier of fact cannot, of course, “determine” the truth of any special circumstance allegations at the same time. This ambiguity is certainly substantial enough to permit bifurcation of the two phases where the prosecution seeks to introduce evidence relevant only to a charged special circumstance.

Section 190.4, subdivision (c) provides in part: “If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider . . . the truth of any special circumstances which may be alleged, . . . unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. ...” (Italics added.) This provision underscores the ambiguity in section 190.1, subdivision (a), since empanelment of a new jury on special circumstances would obviously make it impossible for the trier of fact to determine the truth of any special circumstance allegations “at the same time” as guilt.

The Court of Appeal in Talamantez v. Superior Court (1981) 122 Cal.App.3d 629, 639 [ 176 Cal.Rptr. 800 ] observed that “[t]he separate enumeration of section 207 and section 209 in subsection (ii) of (17) can ... be reasonably seen as two of the[] enumerated offenses [in paragraph (17)], also listed conjunctively, but grouped together within one subsection because of their close relationship.” Unlike the majority, I find this reasoning unpersuasive.

None of the other subsections of paragraph (17) enumerates two offenses. Moreover, although rape, sodomy, oral copulation, and lewd and lascivious conduct are “closely related,” each is enumerated separately. (See § 190.2, subd. (a)(17)(iii-vi).) These facts suggest that the amendment to subsection (ii) was intended to have some effect.

I am fully aware that either construction of the 1978 amendment renders a portion of the statute surplusage. To require proof of simple and aggravated kidnaping renders the reference to simple kidnaping superfluous when the aggravated kidnaping involves robbery, since simple kidnaping is a lesser included offense of kidnaping for robbery. (Maj. opn., ante, at p. 755, fn. 14.) However, to require proof of simple or aggravated kidnaping renders the reference to aggravated kidnaping superfluous in the kidnaping for robbery context, since proof of simple kidnaping alone would satisfy the statute.

Since there is no way to avoid violation of the maxim that courts should construe statutes to give every word a meaning (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489 [ 134 Cal.Rptr. 630 , 556 P.2d 1081 ]), resort must be made to the familiar rule that the accused “is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.” (In re Tartar (1959) 52 Cal.2d 250, 257 [ 339 P.2d 553 ]; see People v. Davis (1981) 29 Cal.3d 814, 828 [ 176 Cal.Rptr. 521 , 633 P.2d 186 ].)