# People v. Easley

> California Supreme Court · November 7, 1983 · 34 Cal. 3d 858

URL: https://www.frixlaw.com/law-library/cases/9790137

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. ELBERT LEE EASLEY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** November 7, 1983
- **Citations:** 34 Cal. 3d 858; 196 Cal. Rptr. 309; 671 P.2d 813; 1983 Cal. LEXIS 247
- **Precedential status:** Published
- **Opinion:** Dissent by Richardson
- **Judges:** Mosk, Richardson, Kaus
- **Cited by:** 205 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/9790137

## How later opinions describe it (automated extraction)

- recognizing that unadorned factor (k) had significant potential for jury confusion.
- noting arguments on both sides

## Opinion text

RICHARDSON, J.
I respectfully dissent.
The majority continues its trend, lamentable in my view, of reversing death penalty judgments for purported “errors” which reasonably could not have affected the jury’s verdict. (See, e.g., People v. Robertson (1982) 33 Cal.3d 21, 63 [ 188 Cal.Rptr. 77 , 655 P.2d 279 ] [dis opn]; People v. Arcega (1982) 32 Cal.3d 504, 531-534 [ 186 Cal.Rptr. 94 , 651 P.2d 338 ] [dis. opn.]; People v. Hogan (1982) 31 Cal.3d 815, 864 [ 183 Cal.Rptr. 817 , 647 P.2d 93 ] [dis. opn.]; People v. Haskett (1982) 30 Cal.3d 841, 868-869 [ 180 Cal.Rptr. 640 , 640 P.2d 776 ] [dis. opn.]; People v. Ramos (1982) 30 Cal.3d 553, 605 [ 180 Cal.Rptr. 266 , 639 P.2d 908 ] [dis. opn.], judgment vacated and cause remanded sub nom. California v. Ramos (1983) — U.S. — [ 77 L.Ed.2d 1171 , 103 S.Ct. 3446 ]; People v. Murtishaw (1981) 29 Cal.3d 733, 780 [ 175 Cal.Rptr. 738 , 631 P.2d 446 ] [dis. opn.]; People v. Green (1980) 27 Cal.3d 1, 77-78 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ] [dis. opn.]; People v. Velasquez (1980) 26 Cal.3d 425, 447 [ 162 Cal.Rptr. 306 , *887 606 P.2d 341 ] [dis. opn.]; cf. People v. Williams (1981) 29 Cal.3d 392, 415-417 [ 174 Cal.Rptr. 317 , 628 P.2d 869 ] [dis. opn.].)
Although California has had a valid constitutional death penalty law since 1977, and approximately 145 judgments of death have been filed with us since then, we have thus far decided fewer than 20 such appeals. Of those decided, we have reversed the penalty in 16 cases and have affirmed the judgment of death in only 2. (People v. Harris (1981) 28 Cal.3d 935 [ 171 Cal.Rptr. 679 , 623 P.2d 240 ]; People v. Jackson (1980) 28 Cal.3d 264 [ 168 Cal.Rptr. 603 , 618 P.2d 149 ].) The judgments in those two cases are presently subject to pending habeas corpus proceedings either in this court (Jackson) or in a federal court (Harris). As reflected in the majority’s ruling in the present case, it is apparent that the majority is willing to reverse a judgment of death for the slightest procedural defect or omission.
Here, the majority reverses the death penalty verdict because of two claimed procedural “errors” which even defendant’s own appellate counsel evidently deemed too insignificant to raise on appeal. As the majority acknowledges, these points were raised by an amicus curiae on rehearing following our original affirmance of the judgment of death.
1. “Sympathy” Instruction
The jury was instructed not to be influenced by “pity” for defendant or “mere sentiment, conjecture, sympathy, passion, prejudice . . . .” Can we reasonably conclude that this harmless admonition, buried in a mass of penalty phase instructions, induced the jury to vote the death penalty for the defendant, a convicted hired killer and arsonist? One thing is very clear—the instruction did not prevent defendant’s introduction of, and the jury’s consideration of, mitigating evidence regarding his background and character. Indeed, the jury was specifically instructed that it could consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” (Italics added, Pen. Code, § 190.3, subd. (k).) This is a very broad and sweeping instruction favorable to the defendant.
Nonetheless, the majority reasons that, solely because of the trial court’s “sympathy” instruction, “the court in effect told the jury not to give any weight to the bulk of the evidence proffered by the defendant. ” (Ante, p. 879.) With due deference to my colleagues, I think such a suggestion is wholly unrealistic and mistakenly assumes that the jurors lacked ordinary intelligence and common sense. We can fairly assume that the jurors understood their proper function: to weigh all of the aggravating and mitigating circumstances in the case and reach their penalty decision accordingly.
*888 This certainly was the assumption of counsel during the trial and the foregoing conclusion is reinforced by an examination of the closing arguments. The prosecutor told the jurors that “Another factor for you to consider is the background of the defendants. ” (Italics added.) In similar fashion, defense counsel likewise explained to the jurors that “one of the things that you can consider in mitigation in this case is evidence of a defendant’s background.” (Italics added.) Before the jury, defense counsel then reviewed at length the mitigating testimony regarding defendant’s family life and his nonviolent history. Does the majority truly believe that the jurors ignored the “any other circumstance” instruction and the arguments of both counsel, and disregarded this mitigating testimony merely because they were instructed not to be influenced by such factors as “mere sentiment, conjecture, sympathy, passion, prejudice ....”?
Justice Mosk touched upon this precise point in his dissenting opinion in People v. Bandhauer (1970) 1 Cal.3d 609, 619-620 [ 83 Cal.Rptr. 184 , 463 P.2d 408 ]), wherein he stated: “Realistically viewed, the instruction [quoted above] is, on balance, favorable to the defendant. Of the various influences proscribed, ‘sentiment’ is vague and ‘conjecture’ is neutral, but ‘passion, prejudice, public opinion or public feeling’ are most often hostile to the defendant. I doubt, for example, that the majority would sanction an instruction which affirmatively authorized the jury to be governed by such ‘passion, prejudice, public opinion or public feeling.’ This leaves ‘sympathy’ as the majority’s main concern. But even that emotion, I submit is more likely to be evoked in favor of the innocent victim and his family than of the criminal whom the jury has convicted of the offense.” ( 1 Cal.3d at p. 620 .) Justice Mosk further observed that “the majority seize upon one word in one instruction to reverse as to penalty .... I am persuaded there is wholly inadequate justification under the ‘miscarriage of justice’ clause of the Constitution (Cal. Const., art. VI, § 13) to require yet another penalty trial.” ( 1 Cal.3d at p. 621 .)
With reference to the factor of “sympathy,” we will do well to recall what this case is about. Defendant was convicted of executing a husband and wife. After binding their hands and legs with baling wire, he inserted rubber balls in their mouths to muffle their screams of pain. Then, as they lay bound and helpless, he methodically stabbed both of his victims over 110 times (according to the autopsy report) with an ice pick, the tip of which finally broke off in Mrs. Junghans’ skull. For his actions he was paid $4,000 within hours after he had completed the two murders. Under such circumstances I find no reasonable basis for concluding, as do my colleagues, that the “sympathy” instruction prejudiced defendant or resulted in any “miscarriage of justice.”
*889 2. Use of 1978 Death Penalty Law Guidelines
The majority next holds that the trial court committed reversible error in inadvertently instructing the jury in the language of the 1978, rather than the 1977, death penalty law. In my view, any such error was patently harmless in this case.
Under the 1977 law, the jurors “shall consider, take into account and be guided by the aggravating and mitigating circumstances . . . and shall determine whether the penalty shall be death or life imprisonment without. . . parole.” (Former Pen. Code, § 190.3.) The 1978 law, supposedly in contrast to the 1977 law, requires the jury to consider the various aggravating and mitigating factors and “impose a sentence of death if the . . . aggravating circumstances outweigh the mitigating circumstances. ” (Pen. Code, § 190.3.) Under the 1977 law, so the argument goes, the jury merely “considers” the mitigating and aggravating circumstances without actually weighing them as required by the 1978 law. Thus, it is contended, the trial court should not have used the 1978 law in framing the instructions, as the defendant is “generally worse off under the 1978 law.” (Ante, p. 883.)
We rejected a similar argument in People v. Frierson (1979) 25 Cal.3d 142, 180 [ 158 Cal.Rptr. 281 , 599 P.2d 587 ], wherein it was urged that the 1977 law was deficient in failing to require the jury to weigh the aggravating and mitigating factors in making its decision. We interpreted the language of the 1977 law “as essentially equivalent to the provision in the valid Florida statute requiring the sentencing authority to ‘weigh’ those factors in reaching its decision.” (Italics added; accord People v. Jackson, supra, 28 Cal.3d 264, 315 .) Thus, reasonably construed, both the 1977 and 1978 laws tell the penalty phase jurors the same thing: “Base your decision upon a weighing of the good with the bad.” It is true that, unlike the 1978 law, the 1977 law does not expressly tell the jury that its death penalty decision depends on whether or not the “bad” factors outweigh the “good” ones, but that is the obvious and only reasonable implication of requiring the jurors to “consider, take into account and be guided by” all these factors.
The majority suggests that the 1978 law contains a mandatory aspect not present in the 1977 law, namely, a requirement that the jury impose the death penalty if it finds the aggravating circumstances outweigh the mitigating ones. Yet as we have seen, the 1977 law likewise requires such a weighing process. It is simply inconceivable to me that a different result would have obtained had the jury been instructed under the 1977 law.
Finally, the majority observes that under the 1977 law, defendant’s prior counterfeiting felony would have been inadmissible as an aggravating fac *890 tor. The majority speculates that some jurors might have relied upon this prior conviction in fixing the penalty at death. With due respect to my colleagues, I find it difficult to believe that on this record defendant, a convicted double murderer for hire and arsonist, was prejudiced by the jury hearing that he had admitted to a previous conviction of “counterfeiting.” I think it reasonable to believe that the jury had its mind on other matters.
A personal aversion toward the death penalty is both understandable and widely shared, but the sovereign people have placed the law “on the books.” It is our responsibility to enforce it in the absence of reversible error. We face an overwhelming and constantly increasing backlog of automatic appeals which only can be aggravated by needless reversals, retrials and renewed appeals. I am fully sensitive to the awesome implications of our resolution of the issues in a death penalty case, and the great care with which we must examine those issues. Nonetheless, our role is to review the claims of procedural error with an eye toward identifying and resolving only those which reasonably can be said to have affected the verdict adversely. We should not transform the slightest procedural irregularity into reversible error merely because the death penalty is invoked.
Our close scrutiny of the appellate record, properly heightened because of the irrevocable consequences of our judgment, however, goes no further than to determine whether “after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) Even in death penalty cases we are under a constitutional mandate not to convert procedural fly specks into reversible errors. Bearing in mind that judges, lawyers and jurors are human, I think it fair to conclude that few, if any, trials, civil or criminal, contain records so immaculate or free of fault as to survive every arguable or imaginative claim of error. Just 10 years ago, the United States Supreme Court expressed a common sense principle which is equally binding upon us: ‘“[A] defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials. [Citations.]” (Brown v. United States (1973) 411 U.S. 223, 231 [ 36 L.Ed.2d 208, 215 , 93 S.Ct. 1565 ], italics added.)
Believing as I do that the defendant received a “fair trial” at the penalty phase, I would affirm the judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790137. Public record. Not legal advice.