People v. Steele

KENNARD, J., Dissenting.

Unlike the majority, I conclude that the trial court erred in admitting evidence that defendant, 17 years before the trial here, had been convicted of the second degree murder of Deborah Cema, a killing factually similar to the charged murder of Lee Ann Thurman. That evidence should have been excluded under Evidence Code section 352 on the ground that its prejudicial impact outweighed its probative value. The *1282 failure to exclude that evidence was prejudicial to the defense and requires reversal of the judgment.

I

Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .” The ruling is reviewed under an abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1118 [ 74 Cal.Rptr.2d 121 , 954 P.2d 384 ]; People v. Cudjo (1993) 6 Cal.4th 585, 609 [ 25 Cal.Rptr.2d 390 , 863 P.2d 635 ].)

This court has often recognized that evidence of prior crimes is inherently prejudicial. (People v. Carpenter (1997) 15 Cal.4th 312, 380 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ]; People v. Ewoldt (1994) 7 Cal.4th 380, 404 [ 27 Cal.Rptr.2d 646 , 867 P.2d 757 ].) The prejudice generally arises from the danger that the jury, relying on the prior crime, will impermissibly infer that the defendant is a person of bad character with a propensity to commit crimes. (See Evid. Code, § 1101, subd. (a).) In this case, however, there is an even stronger reason for believing that the evidence of the prior crime was prejudicial. The evidence in question informed the jury that when defendant committed a prior killing, he was convicted only of second degree murder, a crime then punishable by a sentence of 15 years to life. The jury also knew that defendant had been released from prison, because he was no longer in custody when he killed the victim in this case. Once the jury here learned that defendant had committed a prior murder, been released, and killed again, the outcome of this trial was foreordained. The jury would infer that if defendant were again convicted of only second degree murder, he would again eventually be released from custody, making it possible for him to kill a third victim. No jury under these circumstances would return a verdict of second degree murder and give defendant the opportunity to kill again; instead, the jury would ensure that defendant would never be released by finding him guilty of first degree murder with special circumstances.

Given the highly prejudicial nature of the Cema murder, its admission could be upheld only if it has “substantial probative value. If there is any doubt, the evidence should be excluded.” (People v. Thompson (1980) 27 Cal.3d 303, 318 [ 165 Cal.Rptr. 289 , 611 P.2d 883 ]; see People v. Ewoldt, supra, 7 Cal.4th at p. 404 .) That standard is not met here.

“ ‘[H]ow much “probative value” proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable *1283 inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity).’ ” (People v. Thompson, supra, 27 Cal.3d at p. 318, fn. 20 , quoting People v. Delgado (1973) 32 Cal.App.3d 242, 249 [ 108 Cal.Rptr. 399 ].) The evidence of the prior Cema murder is relevant to the issue in this case of defendant’s intent to kill Thurman, because proof that he intentionally killed before under similar circumstances suggests that his killing in this case was also intentional. But the evidence of the prior murder was neither material nor necesssary. Intent to kill was not a contested issue. The maimer of the killing—seven or eight stab wounds near the heart—itself showed that it was intentional. When the defense moved pretrial to exclude the evidence of the prior murder, it admitted intent and argued that the only issue was premeditation and deliberation. Defendant did not contest the issue of intent at the trial. (The defense did claim that the killing in this case was provoked and thus only voluntary manslaughter, but it never claimed that the killing was unintentional.) In closing argument, defense counsel again conceded that defendant intentionally killed Thurman. Prior crime evidence that is “merely cumulative regarding an issue that was not reasonably subject to dispute” is not substantial probative evidence. (People v. Ewoldt, supra, 7 Cal.4th at p. 406 .)

As the Attorney General acknowledged at oral argument, the “key” issue, the “real” issue, was whether defendant killed Thurman with premeditation and deliberation. The prior Cema murder is relevant to that issue, too. Proof that defendant, under similar circumstances, had previously killed impulsively without premeditation and deliberation would tend to prove that the Thurman murder was also an impulsive killing without premeditation and deliberation.

But the majority reaches a contrary conclusion, asserting that under the “doctrine of chances” (see maj. opn., ante, at p. 1244) the Cema murder tends to prove that the Thurman murder was premeditated. The “doctrine of chances,” according to Wigmore, simply means this: “ ‘the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act ... .’ ” (People v. Robbins (1988) 45 Cal.3d 867, 879-880 [ 248 Cal.Rptr. 172 , 755 P.2d 355 ], quoting 2 Wigmore, Evidence (Chadbourn ed. 1979) § 302, at p. 241.) In this case, the doctrine might serve to indicate that both the prior Cema killing and the Thurman killing were intentional. But that is the limit to its reach. Because the Cema killing was not a premeditated killing, the doctrine of chances could not lead to the conclusion that the Thurman murder was premeditated.

*1284 The two cases cited by the majority as utilizing the doctrine of chances— People v. Carpenter, supra, 15 Cal.4th 312, 379-380 , and People v. Robbins, supra, 45 Cal.3d 867 , 879-880—are not on point. In both cases, this court allowed the admission of evidence of an earlier intentional killing to prove that a later killing was intentional; neither involved admission of evidence, as here, of an earlier intentional but unpremeditated killing as proof that a later killing was not only intentional but premeditated. Thus the doctrine of chances does not support the majority’s assertion that evidence of the prior Cema murder tends to prove in this case that the Thurman murder was premeditated.

There are three theories under which the Cema murder could be invoked to prove that the Thurman murder was premeditated. One is that defendant deliberately placed himself in a situation in which he knew he had previously killed impulsively. This theory was the basis for the trial court’s ruling admitting the evidence of the Cema murder. But the theory is flawed. Evidence showing that a defendant deliberately placed himself in a position that could lead to an unpremeditated killing suggests only that the defendant acted with malice aforethought (see People v. Watson (1981) 30 Cal.3d 290 [ 179 Cal.Rptr. 43 , 637 P.2d 279 ]); it does not turn an unpremeditated killing into a premeditated killing.

A second theory might be that the verdict in the prior Cema case was wrong—that the Cema murder was actually a premeditated murder, from which the jury here could infer the Thurman murder was also premeditated. The prosecutor’s argument at trial hinted at this theory. But defendant’s conviction of second degree murder in the Cema case is an acquittal of first degree murder, and principles of collateral estoppel and double jeopardy prevent the state from relitigating the issue of premeditation in the Cema case. (See Ashe v. Swenson (1970) 397 U.S. 436, 444-445 [ 90 S.Ct. 1189, 1194-1195 , 25 L.Ed.2d 469 ]; People v. Santamaria (1994) 8 Cal.4th 903, 912 [ 35 Cal.Rptr.2d 624 , 884 P.2d 81 ].)

Third, one can speculate, as the majority does, that even if the prior Cema killing was not premeditated, it provided defendant with a model he could follow. In killing Thurman, the victim here, defendant may have deliberately used the same weapon and technique that he used before. But although this theory is a possible inference from the evidence, it is not a strong or compelling one, and it is unsupported by any evidence other than the similarity between the two crimes.

Evidence that serves only to inspire such conjectures has little probative value. The prejudicial impact of the evidence of the prior Cema murder far *1285 outweighs that minimal probative value. I would therefore hold that the trial court abused its discretion in admitting the evidence of the Cema murder at the guilt phase of defendant’s capital trial for the murder of Thurman. 1

It is also clear that the error is prejudicial. In opposing the motion to exclude the evidence of the Cema murder, the prosecutor said that the Cema murder evidence was “the only evidence to support first degree murder” in this case. That was an overstatement—the majority correctly notes that there was some other evidence of premeditation—but the remaining evidence is not compelling. There is a reasonable probability (People v. Brown (1988) 46 Cal.3d 432, 446-447 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ]; People v. Cudjo, supra, 6 Cal.4th 585, 611 ) that the evidence of the Cema murder made the difference in the guilt phase verdict.

II

I also have a comment upon the majority’s treatment of one of the penalty phase issues. The defense submitted declarations from two jurors (which the majority properly holds were inadmissible under Evid. Code, § 1150) that they voted for the death penalty because they did not believe that a sentence of Ufe imprisonment without possibiüty of parole actually meant that defendant could not be paroled. Assuming these declarations are true, as the majority does, they show that the two jurors violated the trial court’s instructions, which told the jurors that they should return a judgment of death only if persuaded that the aggravating circumstances were so substantial in comparison with the mitigating circumstances as to warrant death. Here, two jurors were apparently persuaded to impose the death penalty not because they believed the aggravating circumstances so outweighed mitigating circumstances that death was warranted, but because of their concern that if the appropriate sentence of life imprisonment without possibility of parole were imposed, that sentence would not be carried out. The jurors’ conduct also necessarily violated Penal Code section 1126, which requires jurors “to receive as law what is laid down as such by the court.” There is no question that both jurors would have been subject to challenge for cause if they had asserted this position at voir dire.

*1286 The majority, however, condones this misconduct, saying that the possibility someone might be released, perhaps because of a change in the law, is a matter “ ‘of common knowledge appreciated by every juror who must choose between a death sentence and a sentence of life without parole.’ ” (Maj. opn., ante, at p. 1265, quoting People v. Hovey (1988) 44 Cal.3d 543, 581 [ 244 Cal.Rptr. 121 , 749 P.2d 776 ].) But jurors are required to follow the instructions of the trial court, regardless of what they think is common knowledge. Thus, although jurors may “appreciate” the possibility that the law might change and allow a prisoner to obtain parole, they are not allowed to use that “appreciation” in deciding the sentence. The possibility that a person sentenced to life imprisonment without possibility of parole might actually be paroled is not an aggravating factor to be weighed in the penalty decision.

Recently, in People v. Williams (2001) 25 Cal.4th 441 [ 106 Cal.Rptr.2d 295 , 21 P.3d 1209 ], this court considered the case of a juror who believed, contrary to law, that a 16-year-old woman was capable of voluntary consent to sexual intercourse. We did not condone that action as one based upon common knowledge which a juror could “appreciate” in deciding upon the verdict. We condemned the juror’s action as a form of jury nullification and upheld the trial judge’s order removing him from the jury.

As we observed in Williams , jury nullification does not always benefit the accused; it may work to the defendant’s detriment. (People v. Williams, supra, 25 Cal.4th at p. 462 .) We gave an example: “In a capital case, a juror could vote to impose the death penalty without considering mitigating evidence.” (Ibid.) This case presents another, similar example—two jurors in a capital case voting to impose the death penalty for reasons extraneous to the process of weighing and balancing aggravating and mitigating evidence. This court’s condemnation of jury nullification in Williams applies equally to this case.

Ill

For the reasons stated in part I of this opinion, I would reverse the judgment of guilt and remand the case for retrial.

Appellant’s petition for a rehearing was denied July 17, 2002. Brown, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.

Because I conclude that the admission of the challenged evidence violated California Evidence Code section 352,1 do not reach the question whether it also violated defendant’s due process rights under the federal Constitution. The majority does address that issue, but its discussion is incomplete. The majority quotes McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384 , to the effect that even if prejudice far outweighs probative value there is no violation of due process as long as there is some permissible inference the jury may draw from the evidence. The Seventh Circuit Court of Appeals, however, takes a contrary position to the Ninth Circuit, holding that due process is violated if the prejudicial effect of admitted evidence so far outweighs the probative value that the defendant is denied a fair trial. (Dudley v. Duckworth (7th Cir. 1988) 854 F.2d 967, 970 .) The United States Supreme Court has not resolved the conflict between the federal circuits.