# People v. Robinson > California Supreme Court · December 15, 2005 · 36 Cal. Rptr. 3d 760 URL: https://www.frixlaw.com/law-library/cases/9784836 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. JAMES ROBINSON, JR., Defendant and Appellant - **Court:** California Supreme Court - **Decided:** December 15, 2005 - **Citations:** 36 Cal. Rptr. 3d 760; 37 Cal. 4th 592; 2005 Daily Journal DAR 14438; 124 P.3d 363; 2005 Cal. Daily Op. Serv. 10538; 2005 Cal. LEXIS 13680 - **Precedential status:** Published - **Opinion:** Concurrence by Moreno - **Judges:** George - **Cited by:** 140 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9784836 ## Opinion text *656 MORENO, J., Concurring. I concur in the majority opinion. The majority correctly concludes that defendant has waived the issue of whether the nature and extent of the victim impact evidence presented was properly admitted, because defense counsel failed to bring an in limine motion to restrict admission of the evidence. (Maj. opn., ante, at p. 652; see People v. Pollock (2004) 32 Cal.4th 1153, 1180 [ 13 Cal.Rptr.3d 34 , 89 P.3d 353 ] [trial counsel successfully moved to limit the scope of the victim impact testimony before the commencement of such testimony].) Although the majority does not decide the merits of defendant’s claim, I write separately to express my view that a certain type of testimony by the victims’ families in this case was not properly admissible as victim impact evidence. The proper purpose of victim impact evidence was set forth in Payne v. Tennessee (1991) 501 U.S. 808 [ 115 L.Ed.2d 720 , 111 S.Ct. 2597 ] (Payne). In approving the very brief victim impact testimony in that case, the court stated: “ ‘[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.’ ” (Id. at p. 825.) The court in Payne , although overruling Booth v. Maryland (1987) 482 U.S. 496 [ 96 L.Ed.2d 440 , 107 S.Ct. 2529 ] (Booth) to the extent that it mandated exclusion of victim impact evidence, left intact Booth’s holding that “the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment.” (Payne, supra, 501 U.S. at p. 830, fn. 2 ; see also People v. Pollock, supra, 32 Cal.4th at p. 1180 .) Booth , in explaining why the admission of such characterization and opinion evidence was unconstitutional, stated: “One can understand the grief and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant.” (Booth, supra, 482 U.S. at p. 508 .) In the present case, I find parts of the victim impact testimony crossed the line between proper victim impact testimony and improper characterization and opinion by the victim’s family. The prime example was that of Brian Berry’s father, Jan Stephan Berry, who testified: “ ‘Even though [Brian] was 18 years old and now an adult, as a father you always feel that you are there to protect your children and it is very difficult to think that at the time when he most needed somebody I couldn’t be there to help him. How can I ever *657 escape the image of my son’s terror as he defenselessly pleaded for his life and not by accident, not in anger, not in fear, but for a few hundred dollars someone could look my son in the eye, and without feeling or mercy, in a point-blank range shoot him in the face, then put the gun against the side of his head and shoot him again.’ ” (Maj. opn., ante, at p. 646, fn. omitted, italics added.) The above passage is only minimally related to the valid purpose of reminding the jury “ ‘that the victim is an individual whose death represents a unique loss to society and in particular to his family.’ ” (Payne, supra, 501 U.S. at p. 825 .) Rather, it is quite plainly “the admission of a victim’s family members’ characterizations and opinions about the crime [and] the defendant,” which violates the Eighth Amendment. (Payne, supra, 501 U.S. at p. 830, fn. 2 .) A similar statement was made by James White’s mother, Kristine White. As she stated: “ ‘All of these things that you have heard about replay in our minds like videotape, the events of what happened at Subway. I can see James and what his terror must have been like in seeing his best friend shot. How afraid he must have been on his knees asking for his life. I can feel the gun to his head. To this day I don’t understand how I slept so soundly and didn’t know. You’d think that you would, [f] I don’t understand anybody being able to do that, [f] I can hear him moaning as he lay on the ground and bled from his wound and there wasn’t anybody there to help him.’ ” (Maj. opn., ante, p. 649, fn. omitted, italics added.) The above statement, again, is only minimally related to the purpose of victim impact evidence discussed ante. Rather, it allowed the parent of the victim to invoke an imagined version of the crime, the version that was the most horrific, and that was in alignment with the prosecutor’s theory of the murders. 1 Although the above statement may have been couched in the language of victim impact testimony, i.e., in terms of a “videotape” running in the mind of the victim’s mother, that “videotape” was in fact a simile for a series of recurrent thoughts she had based on things she had “heard about.” Those thoughts in turn were essentially characterizations of and opinions about the crime and defendant, the primary effect of which would be to “inflame the jury” (Booth, supra, 482 U.S. at p. 508 ) in order to elicit from it the maximum penalty. In fact, I would hold as a general rule that testimony of victims’ friends and family regarding their imagined reenactments of the crime be excluded. Such testimony is too far removed from victim impact evidence’s central *658 purpose of explaining the loss to the family and society that resulted from the victim’s death, and can too easily lend itself to improper characterization and opinion of the crime and defendant, to pass muster under the Eighth Amendment. Of course, if the victim impact witness actually witnessed the crime occurring, such testimony would be admissible. (See People v. Fierro (1991) 1 Cal.4th 173, 234-235 [ 3 Cal.Rptr.2d 426 , 821 P.2d 1302 ].) Because defendant has waived the issue on appeal, there is no occasion to decide whether the above erroneous admissions were prejudicial, nor whether there are other parts of the victim impact testimony in this case that should have been excluded. Kennard, J., concurred. Appellant’s petition for a rehearing was denied February 22, 2006. Although the majority is correct that White’s statement is not inconsistent with the evidence at trial, neither does that evidence, chiefly Dennis Ostrander’s account of what defendant told him about the crimes, compel the conclusion that the murders occurred in the manner that White, and the prosecutor during closing argument, described them. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9784836. Public record. Not legal advice.