# People v. Edwards

> California Supreme Court · November 25, 1991 · 54 Cal. 3d 787

URL: https://www.frixlaw.com/law-library/cases/9633506

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. THOMAS FRANCIS EDWARDS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** November 25, 1991
- **Citations:** 54 Cal. 3d 787; 1 Cal. Rptr. 2d 696; 91 Daily Journal DAR 14485; 819 P.2d 436; 1991 Cal. LEXIS 5854
- **Precedential status:** Published
- **Opinion:** Concurring in part by Mosk
- **Judges:** Arabian, Kennard, Mosk
- **Cited by:** 360 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by People v. Diaz, 60 Cal. 4th 1176 (2015).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633506

## How later opinions describe it (automated extraction)

- stating that a defendant in a crim inal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination
- finding that victim impact evidence relates to aggravating factor of circumstances of offense
- noting that “a certain minimum period of time” for waiting and watching had never been required, only a period of time “not insubstan- tial”

## Opinion text

MOSK, J.
Concurring and Dissenting. I concur in the judgment as to guilt. After review, I have found no error warranting reversal.
I dissent from the judgment as to penalty. For the reasons stated in my concurring and dissenting opinion in People v. Morales (1989) 48 Cal.3d 527, 574-575 [ 257 Cal.Rptr. 64 , 770 P.2d 244 ], I believe that the lying-in-wait special circumstance of the 1978 death penalty law is invalid under the Eighth Amendment to the United States Constitution. Lying in wait was the only special circumstance alleged and found true in this case. Because it should be vacated on federal constitutional grounds, the verdict of death should be set aside as unsupported.
Although I need not consider any other issue bearing on penalty in this particular case, I write further to address a question of general and substan *851 tial importance to the jurisprudence of capital punishment in California: Does the 1978 death penalty law allow the introduction of so-called “victim impact” evidence?
I shall begin, where I must, with the language of the 1978 death penalty law. Its background is this.
In 1977, the Legislature enacted Senate Bill No. 155, 1977-1978 Regular Session. (Stats. 1977, ch. 316, § 1 et seq., p. 1255 et seq.) This statute, among other things, repealed Penal Code section 190 et seq. as those provisions then stood, and added new provisions in their place. This was the 1977 death penalty law.
At the November 7, 1978, General Election, the people enacted a statute when they approved an initiative denominated on the ballot as Proposition 7. This statute, in its turn, repealed Penal Code section 190 et seq. as those provisions stood under Senate Bill No. 155, and added new provisions in their place. This is the 1978 death penalty law.
Now to the relevant statutory language. Penal Code section 190.3 declares in pertinent part that “In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, 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 express or implied threat to use force or violence, and the defendant’s character, background, history, mental condition and physical condition.” 1
This language of Penal Code section 190.3 under the 1978 death penalty law evidently derives directly from former Penal Code section 190.3 under the 1977 death penalty law. It is virtually identical to its predecessor except for added words dealing with prior felony convictions. (Compare Pen. Code, § 190.3 with Pen. Code, former § 190.3, Stats. 1977, ch. 316, § 11, pp. 1258-1259.) 2
*852 In People v. Boyd (1985) 38 Cal.3d 762, 772-776 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ], we construed the 1978 death penalty law to allow the introduction of only such evidence as is relevant to one or more of the following issues: (a) the circumstances of the crime; (b) other violent criminal activity; (c) prior felony convictions; (d) extreme mental or emotional disturbance; (e) victim participation or consent; (f) reasonable belief in moral justification or extenuation; (g) extreme duress or substantial domination; (h) impairment through mental disease or defect or through intoxication; (i) age; (j) status as an accomplice and minor participant; and (k) any other mitigating matter.
I return to the question whether the 1978 death penalty law allows the introduction of “victim impact” evidence. At the outset, it is necessary to define the scope of the evidence and the coverage of the law.
First, the scope of “victim impact” evidence. In its broadest definition, evidence of this sort appears to embrace four matters: (1) the effect of the crime on the victim; (2) the victim’s personal characteristics; (3) the emotional impact of the crime on the victim’s family (and perhaps others); and (4) the opinions about the crime and the criminal held by family members (and perhaps others). (See generally Payne v. Tennessee (1991) 501 U.S___ [ 115 L.Ed.2d 720, 726-739 , 111 S.Ct. 2597, 2601-2611 ], overruling in part Booth v. Maryland (1987) 482 U.S. 496, 502-509 [ 96 L.Ed.2d 440, 448-452 , 107 S.Ct. 2529 ], and South Carolina v. Gathers (1989) 490 U.S. 805, 810-812 [ 104 L.Ed.2d 876, 882-883 , 109 S.Ct. 2207 ] [each of the three decisions referring wholly or mainly to the second, third and fourth matters]; People v. Benson (1990) 52 Cal.3d 754, 796-797 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ] [referring to all four matters]; People v. Haskett (1982) 30 Cal.3d 841, 863-864 [ 180 Cal.Rptr. 640 , 640 P.2d 776 ] [referring to the first matter].)
Next, the coverage of the 1978 death penalty law. The only issue as to which “victim impact” evidence may possibly be relevant is, of course, the circumstances of the crime. But to what does this phrase refer? The answer cannot come from an abstract consideration of the dictionary definitions of the individual words. 3 Rather, it entails an inquiry into the intent of the people when they enacted the present statute by approving Proposition *853 7—and ultimately into the intent of the Legislature when it enacted Senate Bill No. 155, the direct source of the operative language.
To give its clear words their plain meaning, the phrase “circumstances of the crime” evidently refers to such facts as are “part” of the crime itself— including, for example, the manner in which the actus reus was performed and the motive that underlay the mens rea. Put differently, it relates, as it were, to what journalism would call the “who, what, where, when, and why” of the offense.
The same meaning arises from the relevant legal context.
In Gregg v. Georgia (1976) 428 U.S. 153, 189 [ 49 L.Ed.2d 859, 883 , 96 S.Ct. 2909 ], one of the United States Supreme Court’s landmark capital punishment decisions, the plurality opinion of Justices Stewart, Powell, and Stevens quoted from the opinion of the court in Pennsylvania v. Ashe (1937) 302 U.S. 51, 55 [ 82 L.Ed. 43, 46 , 58 S.Ct. 59 ], to declare that “ ‘[f]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ ” (Italics added.) The italicized phrase is not expressly defined. Its meaning, however, is suggested by the case law from which Ashe evidently drew the words: it refers—unsurprisingly—to such facts as are part of the crime itself. (Note (1990) 56 Brooklyn L.Rev. 1045, 1073-1076.)
It is reasonable to conclude that such a definition was intended by the Legislature in enacting Senate Bill No. 155. Gregg stood immediately behind the statute and informed its substance. (See People v. Frierson (1979) 25 Cal.3d 142, 172-184 [ 158 Cal.Rptr. 281 , 599 P.2d 587 ] (plur. opn.); see also Rockwell v. Superior Court (1976) 18 Cal.3d 420, 426-445 [ 134 Cal.Rptr. 650 , 556 P.2d 1101 ].) It is also reasonable to conclude that the same definition was intended by the people in enacting the present statute through their approval of Proposition 7. Gregg was present and influential there as well. (See People v. Frierson, supra, at pp. 172-184 (plur. opn.); see also Rockwell v. Superior Court, supra, at pp. 426-445 .) Further, the pertinent language of the initiative derives directly from the statute.
In view of the foregoing, the circumstances of the crime under the 1978 death penalty law should be deemed to include such facts as are part of the crime itself.
It is sometimes argued that the phrase in question can be read, in the abstract, to reach “victim impact” evidence in its broadest definition. But I cannot conclude that the people intended such coverage.
*854 To be sure, in 1978 the effect of the crime on the victim himself appears to have been firmly accepted as a factor bearing on penalty. (See, e.g., Cal. Rules of Court, former Div. I-A, Sentencing Rules for the Superior Courts, adopted eff. July 1, 1977, now Div. III, renumbered eff. Jan. 1, 1984 (hereafter Cal. Rules of Court), former rule 421(a)(1) [“Circumstances in aggravation include” “[f]acts relating to the crime, including the fact that” “[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness . . . .”].)
But by 1978, the victim’s personal characteristics, the emotional impact of the crime on the victim’s family and others, and the opinions about the crime and the criminal held by such persons had not yet received acceptance as penalty factors. (See, e.g., Cal. Rules of Court, supra, former rule 421 [not including such matters among the defined “[circumstances in aggravation” either expressly or impliedly].) Indeed, they began to receive some recognition only in the early 1980’s. (Hudson, The Crime Victim and the Criminal Justice System: Time for A Change (1984) 11 Pepperdine L.Rev.—Symposium—23, 51-53; see Payne v. Tennessee, supra, 501 U.S. at p. — [ 115 L.Ed.2d at p. 533 , 111 S.Ct. at p. 2606 ] [stating that “the admission of this particular kind of evidence ... is of recent origin”].)
Significant in this regard is the leading case of People v. Bernette (1964) 30 Ill.2d 359 [197 N.E.2d. 436]. There, the Illinois Supreme Court reversed a judgment of death because of the erroneous introduction of what is now called “victim impact” evidence. In so doing, it declared: “[T]his court has consistently condemned the admission of evidence that the deceased left a spouse and a family, inasmuch as such evidence has no relationship to . . . the punishment to be inflicted upon [the defendant], but serves ordinarily only to prejudice him in the eyes of the jury.” (Id. at p. 371 [197 N.Ed.2d at p. 443].)
Therefore, in its broadest definition “victim impact” evidence was novel when the people considered Proposition 7. There is no basis to conclude that evidence of this sort was within contemplation. There is less basis still to conclude that it would have been permitted. Clearly, those who drafted the initiative desired to assure its constitutionality. (See Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7,1978), rebuttal to argument against Prop. 7, p. 35.) Presumably, those who voted for the measure shared that desire. If constitutionality was the end, novelty was not the means. In his briefing on the People’s behalf in this appeal, the Attorney General effectively concedes the point: “California law does not allow the full measure of victim impact information . . . .”
*855 Now I address the question whether the 1978 death penalty law allows the introduction of “victim impact” evidence. The circumstances of the crime constitute the only issue as to which evidence of this sort may possibly be relevant. They include such facts as are part of the crime itself. Plainly, they embrace the effect of the crime on the victim himself. He is the very focus of the defendant’s act and intent. Just as plainly, they generally do not reach the victim’s personal characteristics, the emotional impact of the crime on the victim’s family and others, and the opinions about the crime and the criminal held by such persons. Typically, these facts are not part of the crime.
The majority conclude that the circumstances of the crime under the 1978 death penalty law embrace “the specific harm caused by the defendant, including the impact on the family of the victim.” (Maj. opn., ante, at p. 835.) To the extent they hold that the effect of the crime on the victim himself is material, I agree. Otherwise, I do not. My analysis has shown that the emotional impact of the crime on the victim’s family is generally immaterial.
Indeed, just a year ago in People v. Gordon (1990) 50 Cal.3d 1223, 1266-1267 [ 270 Cal.Rptr. 451 , 792 P.2d 251 ], we concluded unanimously that “the only circumstances material to the determination of penalty [under the 1978 death penalty law] are those defined in Penal Code section 190.3 . ... In the general case ... the effect of the crime on the victim’s family is not relevant to any material circumstance.”
The majority now assert that what they call Gordon's “assumption” “is suspect in light of” People v. Haskett, supra, 30 Cal.3d 841, 863-864 , People v. Douglas (1990) 50 Cal.3d 468, 536-537 [ 268 Cal.Rptr. 126 , 788 P.2d 640 ], and People v. Benson, supra, 52 Cal.3d 754, 796-797 , and “was largely based on Booth and Gathers.” (Maj. opn., ante, at p. 835.) They are wrong. First, Haskett holds only that the circumstances of the crime under the 1977 death penalty law embraces the effect of the crime on the victim himself; Douglas and Benson do not even address a statutory issue. Second, in part pertinent here Gordon was based solely on the 1978 death penalty law and, specifically, Penal Code section 190.3—and not at all on Booth or Gathers . The opinion speaks for itself.
With the foregoing in mind, let me briefly consider the “victim impact” issues raised in this case.
First, the admission of the photographs of the victims before the attack— Kelly Cartier, who survived, and Vanessa Iberri, who did not. There was no error. The evidence was relevant to the circumstances of the crime. It bore on *856 facts that were part of the crime itself: it revealed the crime’s effect on the girls by revealing the girls themselves.
Second, the prosecutor’s summation, which touched on the effect of the crime on Kelly and on Vanessa’s family. Of course, one cannot present argument on issues that are not material. The comment about Kelly was not misconduct. It related to the circumstances of the crime because it bore on facts that were part of the crime itself, specifically, the crime’s effect on the girl. By contrast, the comment about Vanessa’s family was misconduct. It did not relate to the circumstances of the crime. Neither did it refer to any other material issue. Reversal, however, is not warranted on this basis. The comment was brief and neutral. At defendant’s request, the trial court struck the remark and admonished the jury not to consider it in any way. There is no reasonable possibility that the words in question affected the outcome. (People v. Brown (1988) 46 Cal.3d 432, 446-448 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ].)
For the reasons stated above, I am of the view that the judgment should be affirmed as to guilt and reversed as to penalty.
Appellant’s petition for a rehearing was denied January 22,1992. Mosk, J. was of the opinion that the petition should be granted.
Penal Code section 190.3 restates the substance of the language quoted above in its list of penalty factors.
Similarly, the language of Penal Code section 190.3 under the 1978 death penalty law that is referred to in footnote 1, ante, derives directly from former Penal Code section 190.3 under the 1977 death penalty law. It too is virtually identical to its predecessor except for added *852 words dealing with prior felony convictions. (Compare Pen. Code, § 190.3 with Pen. Code, former § 190.3, Stats. 1977, ch. 316, § 11, pp. 1259-1260.)
And certainly not, as the majority evidently believe (see maj. opn., ante, at p. 833), from the historically most primitive sense (1 Oxford English Dict. (2d ed. 1989) pp. xxviii-xxix) of the single word “circumstance” (3 Oxford English Dict., supra, at p. 240) as reported in the Oxford English Dictionary. Why is it that the majority turn to the Oxford English Dictionary—which is cited rarely in our opinions—instead of Webster’s Third New International Dictionary—which is referred to commonly? The reader will soon discover the answer if only *853 he or she notes that the first sense of “circumstance” as reported in Webster’s Third New International Dictionary is “a specific part ... of the surroundings or background of an event. . . .” (Webster’s New Internat. Dict. (3d ed. 1961) p. 410, italics added.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633506. Public record. Not legal advice.