# People v. Murtishaw

> California Supreme Court · July 27, 1981 · 29 Cal. 3d 733

URL: https://www.frixlaw.com/law-library/cases/9632818

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DAVID LESLIE MURTISHAW, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** July 27, 1981
- **Citations:** 29 Cal. 3d 733; 175 Cal. Rptr. 738; 631 P.2d 446; 1981 Cal. LEXIS 165
- **Precedential status:** Published
- **Opinion:** Concurring in part by Richardson
- **Judges:** Tobriner, Richardson
- **Cited by:** 258 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in People v. Boyd.
- Negative treatments: 2
- Distinguished by: 4
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9632818

## How later opinions describe it (automated extraction)

- holding trial judges “have discretionary authority to permit defense access to jury records and reports”

## Opinion text

RICHARDSON, J., Concurring and Dissenting.
I concur in the majority opinion to the extent that it affirms defendant’s conviction of first degree murder. I respectfully dissent, however, from a reversal of the judgment as to penalty. In my view, the trial court did not err in admitting expert testimony regarding defendant’s propensity for violent conduct.
*776 Dr. Ronald Siegel is a psychologist licensed to practice in this state. He had worked for seven years as a research psychologist in Terminal Island, a federal prison, as well as in the jail systems in Los Angeles and Orange County, studying the effects of incarceration upon prisoners or inmates (primarily drug offenders). Based upon his extensive studies, his review of psychiatric and psychological reports concerning defendant herein, and his own personal examination of defendant, Dr. Siegel stated as his opinion at the penalty trial that defendant will continue to be “a violent assaultive and combative individual” in prison by reason of his “inability to relate inter-personally, because of his latent rage and hostility and violence.” Dr. Siegel further testified that he believed defendant would express his rage physically, based upon defendant’s past history of “physical rather than verbal displays,” and that defendant “may become not only assaultive and violent, but he could show the same types of homicidal tendencies that he has shown in the past, with no ability to morally or physically constrain himself to the demands of the environment in which he finds himself.”
Defense counsel cross-examined Dr. Siegel, eliciting from him aspects of his limited experience with conditions in state prisons. Counsel also called Clinton Duffy, former warden of San Quentin Prison, to testify regarding the available counseling and therapy at state prisons, and to give Duffy’s own opinion that prisoners convicted of first degree murder and sentenced to life imprisonment are “more reliable, they’re the best prisoners. . . . They don’t get in too much trouble, if any.”
The majority reverses the penalty of death in this case solely on the ground that Dr. Siegel’s testimony was inadmissible. The majority states that expert predictions of future violence have “doubtful relevance” to the penalty issue, are “unreliable, and frequently erroneous,” and “may be extremely prejudicial to the defendant.” (Ante, p. 767.) To the contrary, as I explain herein, the probable dangerousness of the defendant is one of the more relevant factors to be considered by the jury in deciding the penalty issue and is clearly admissible under former Penal Code section 190.3. Moreover, the possible unreliability of an expert’s testimony is uniformly held insufficient to justify exclusion of that testimony, as such an objection goes to its weight rather than its admissibility. Finally, any “prejudicial” effects from introduction of this evidence can be minimized by probing cross-examination, impeachment and opposing testimony.
*777 1. Relevance
Former section 190.3 of the Penal Code expressly permits either the People or the defendant, during the penalty phase, to present evidence “as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to, the nature and circumstances of the present offense, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the expressed or implied threat to use force or violence, and the defendant’s character, background, history, mental condition and physical condition.” (Italics added.) The section also lists a number of additional factors to be considered by the trier of fact, none of which directly pertains to the defendant’s character or propensity for violence. (See former § 190.3, subds. (a)-(j).) Although the majority observes that “The testimony of Dr. Siegel is not relevant to any of the listed factors” in subdivisions (a) through (j), the majority is forced to concede that “Arguably the risk that defendant will commit future violent acts is a matter ‘relevant to ággravation’ which reflects on defendant’s future ‘character’ and ‘mental condition.’” {Ante, at p. 773.) Thus, the majority’s own analysis belies its earlier suggestion (p. 773) that the defendant’s propensity for violence is a factor of “doubtful relevance” to the penalty issue.
Indeed, this very factor, defendant’s propensity for violence, is one of only three factors given primary consideration by the jury under the Texas death penalty law upheld by the United States Supreme Court in Jurek v. Texas (1976) 428 U.S. 262, 269-277 [ 49 L.Ed.2d 929, 937-941 , 96 S.Ct. 2950 ]. In Texas, the jury at the penalty trial is asked to determine “whether . .. there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” (Id., at pp. 267-268 [ 49 L.Ed.2d at p. 936 ].) As I discuss in the next part of this dissent, the high court upheld the constitutionality of the Texas statute, expressly rejecting the contention, so readily accepted by the majority here, that it is “impossible to predict future behavior....” (Id., at p. 274 [ 49 L.Ed.2d at p. 940 ].)
The relevance of the defendant’s propensity for future acts of violence seems plain, although the majority professes difficulty discerning it: If the defendant is likely to continue in his violent course, endangering the lives of those around him (including guards and other prisoners), a reasonable juror might well conclude that defendant’s behavioral pattern is a factor “relevant to aggravation” under former section 190.3. In the *778 words of the United States Supreme Court, “consideration of the character and record of the individual offender” is an indispensable part of the death penalty determination process. (Woodson v. North Carolina (1976) 428 U.S. 280, 304 [ 49 L.Ed.2d 944, 961 , 96 S.Ct. 2978 ], italics added.)
2. Reliability
Relying primarily upon technical studies and surveys by persons whose own reliability is wholly beyond our expertise to measure, the majority concludes that “expert predictions that persons will commit future acts of violence are unreliable, and frequently erroneous.” (Ante, p. 767; see pp. 768-770.) Although this premise may be supported by the majority’s cited sources, it certainly does not lead to the conclusion that such unreliability renders inadmissible expert testimony on the subject. Indeed, prior to today’s decision, the cases uniformly have held that such an opinion is admissible, subject to the usual methods of impeachment through cross-examination and introduction of contrary expert opinion.
Thus, it is well established that expert testimony regarding the defendant’s probable dangerousness or potential for future violence is admissible whenever such condition is relevant to the issues. (People v. Hines (1967) 66 Cal.2d 348, 355 [ 57 Cal.Rptr. 757 , 425 P.2d 557 ]; People v. Hines (1964) 61 Cal.2d 164, 173 [ 37 Cal.Rptr. 622 , 390 P.2d 398 ]; People v. Bickley (1962) 57 Cal.2d 788, 793 [22 CaLRptr. 340, 372 P.2d 100 ]; People v. Henderson (1980) 107 Cal.App.3d 475, 484 [ 166 Cal.Rptr. 207 ].) As noted above, evidence of “defendant’s character ... and mental condition” is expressly admissible under Penal Code section 190.3.
The majority evidently would disapprove the foregoing cases, based upon its doubts as to the reliability of expert predictions as to future dangerousness. Rather than impose an absolute rule in this regard, however, the majority leaves open the possibility that such predictions might be admissible in a given case if founded upon a “close, long-term relationship” with the defendant and a “greater understanding of defendant’s behavior,” or upon a “long continued pattern of criminal violence.” (Ante, p. 774.) Unfortunately, these purported standards of admissibility are so broad and vague as to afford little or no guidance to trial courts which must attempt to apply them in future cases.
*779 In Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 438 [ 131 Cal.Rptr. 14 , 551 P.2d 334 , 83 A.L.R.3d 1166 ], the majority of this court observed that, although expert predictions of violence are difficult to make and are often erroneous, “the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.” (Italics added.) A similar analysis led the United States Supreme Court in Jurek v. Texas, supra, 428 U.S. 262 , to uphold the Texas death penalty law which places great emphasis upon the question whether it was probable that the defendant would commit further criminal acts of violence. In rejecting the defendant’s contention that “it is impossible to predict future behavior,” the high court stated: “It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system.. .. [A]ny sentencing authority must predict a convicted person’s probable future conduct when it engages in the process of determining what punishment to impose.” (Pp. 274-275, italics added, fn. omitted.)
The Supreme Court also recently explained that “Whether the individual is mentally ill and dangerous to either himself or others .. . turns on the meaning [italics in original] of the facts which must be interpreted by expert psychiatrists or psychologists.” (Addington v. Texas (1979) 441 U.S. 418, 429 [ 60 L.Ed.2d 323, 333 , 99 S.Ct. 1804 ], italics added.)
Thus, the fact that predictions of dangerousness may be difficult to make certainly does not render them inadmissible, especially when those predictions are made by persons statutorily qualified to make them. (See Bus. & Prof. Code, § 2903.) As we recently stated, “The unmistakable general trend in recent years has been toward liberalizing the rules relating to the testimonial qualifications of medical experts. ... [II] There are sound and persuasive reasons supporting this trend toward permitting admissibility more readily, rather than rigidly compelling rejection of expert testimony. It is obvious that an overly strict standard of qualification would make it difficult and in some instances virtually impossible to secure a qualified expert witness.” (Brown v. Colm (1974) 11 Cal.3d 639, 645-646 [ 114 Cal.Rptr. 128 , 522 P.2d 688 ], italics added.) Thus, the cases acknowledge that “every *780 medical opinion, of necessity, must be in a sense speculative; but this does not destroy the probative value of such opinion [citation]. In essence, appellant’s objection here goes to the weight, rather than the admissibility of the evidence; ...” (Schnear v. Boldrey (1971) 22 Cal.App.3d 478, 484 [ 99 Cal.Rptr. 404 ].)
The majority’s fear that expert testimony regarding the defendant’s dangerousness will have a critical “prejudicial impact” upon the jury is unfounded. We ourselves answered the majority thesis pointing out in Brown, supra, that any expert witness “is subject to as penetrating a cross-examination as the ingenuity and intellect of opposing counsel can devise. This inquiry may challenge not only the knowledge of the witness on the specific subject at issue, but also the reasons for his opinion and his evaluation of any written material upon which he relied in preparation for his testimony. (Evid. Code, § 721.) Further, a defendant is free to argue that the witness’ testimony is not entitled to acceptance or credibility because he lacks personal acquaintance with the subject at the time the alleged negligent act occurred, and defendant may produce his own witnesses in rebuttal. These measures are more than adequate to protect a defendant’s interests.” (Brown v. Colm, supra, at p. 646 , italics added.)
There is no indication that in the present case defense counsel was in any way hampered in his attempts to impeach or lessen the credibility of Dr. Siegel’s testimony.
For all the foregoing reasons, I conclude that Dr. Siegel’s testimony was admissible at defendant’s penalty trial. Accordingly, I would affirm the judgment in its entirety.
Appellant’s petition for a rehearing was denied August 26, 1981, and the opinion was modified to read as printed above.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9632818. Public record. Not legal advice.