People v. Edwards

KENNARD, J.

Concurring. I concur in the affirmance of the judgment imposing the death penalty, but I am unable to join that portion of the majority opinion discussing the admissibility of victim impact evidence. I agree that the evidence at issue in this case—photographs of the victims— was properly admitted at the penalty phase. But I see no justification for the majority opinion’s expansive dicta about the admissibility of victim impact evidence in general.

Under our state law, Penal Code section 190.3 governs the scope of permissible evidence and argument at the penalty phase of a capital prosecution. Factor (a) of that section permits evidence and argument about the “circumstances of the crime.” Whatever the outer boundaries of that concept may be, the “circumstances of the crime” must include the events that make up the crime itself and facts about the victim known to the defendant at the time of the crime.

In this case, the evidence showed that defendant saw the victims before he shot them. Because the victims’ physical appearance was a fact about the victims known to defendant when he committed the crimes, it was one of the “circumstances of the crime” as that phrase is used in factor (a) of Penal Code section 190.3. The photographs in question were offered to show, and did show, the physical appearance of the two victims at the time of the *850 crimes. Because the photographs showed what defendant saw while he committed the crimes, they were admissible to demonstrate the “circumstances of the crime.”

The prosecution’s use of this evidence is in no way contrary to the Eighth Amendment to the federal Constitution. The United States Supreme Court has always held that the Eighth Amendment permits, and indeed requires, that the sentencing decision in a capital case be based at least in part on the “circumstances of the crime” (see Zant v. Stephens (1983) 462 U.S. 862, 879 [ 77 L.Ed.2d 235, 251 , 103 S.Ct. 2733 ]) and it has recently held as well that the Eighth Amendment erects no per se bar, at the sentencing phase of a capital case, to evidence and argument about the victims’ individual characteristics. (Payne v. Tennessee (1991) 501 U.S____[ 115 L.Ed.2d 720, 736 , 111 S.Ct. 2597, 2609 ].)

The majority purports to hold that “factor (a) of section 190.3 allows evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim.” (Maj. opn., ante, p. 835.) There can be no such holding in this case because “ ‘the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734-735 [ 257 Cal.Rptr. 708 , 771 P.2d 406 ], quoting River Farms Co. v. Superior Court (1933) 131 Cal.App. 365, 369 [ 21 P.2d 643 ].) This appeal presents no issue about the propriety of evidence or argument on the impact of a capital crime on the victim’s family, or the propriety of evidence or argument offered only to show the “specific harm caused by the defendant,” and so there can be no holding on those issues. Their resolution must await a case that actually presents them.