“[Wjhere trial counsel has reason to believe that mental defenses may be available and advisable, the client’s initial opposition does not excuse counsel from an investigation sufficient to present the client with an informed tactical choice.” (emphasis in original)
How later courts described this case
- “[Wjhere trial counsel has reason to believe that mental defenses may be available and advisable, the client’s initial opposition does not excuse counsel from an investigation sufficient to present the client with an informed tactical choice.” (emphasis in original)
- conc, and dis. opn. of Mosk, J.
- declining to fault Gonzales’s attorney for failing to discover additional evidence to impeach Acker
- cone. & dis. opn. of Mosk, J.
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by In Re Steele, 10 Cal. Rptr. 3d 536 (2004)
51 Cal.3d 1179, 1212 , overruled on other grounds as stated in In re Steele (2004) 32 Cal.4th 682, 691
Superseded by statute, as recognized in In Re Steele
51 Cal.3d at p. 1212 , superseded by statute on another ground as stated in Satele v. Superior Court (2019) 7 Cal.5th 852, 857
Superseded on other grounds by Satele v. Superior Court, 249 Cal. Rptr. 3d 562 (2019)
51 Cal.3d at p. 1217 , superseded on other grounds in Satele v. Superior Court (2019) 7 Cal.5th 852
Disapproved on other grounds by a later decision
51 Cal.3d 1179, 1224, fn. 21 , disapproved on other grounds in Barnett v. Superior Court (2010) 50 Cal.4th 890, 898
other groundsmedium confidence
The opinion
ARABIAN, J., Concurring.
Although I concur fully in Justice Eagleson’s thorough and well reasoned majority opinion, I am constrained to state separately my views concerning the prosecutor’s use of a homemade scale during penalty phase argument. This issue is the principal basis of a dissent by Justice Broussard.
*1262 I agree with the majority’s conclusion that, viewed in context, the jury was not misled as to the scope of its sentencing discretion. (People v. Brown (1985) 40 Cal.3d 512, 544, fn. 17 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ].) The use of the scale and the prosecutor’s accompanying remarks could not reasonably have confused a jury otherwise informed that counsel’s remarks were not evidence, that the deliberative process involved a “weighing” rather than a “counting” of relevant factors, and that the jury itself was to assign values to those factors and to impose the sentence it deemed “just and fair.”
It is not enough, however, simply to dismiss the scale illustration as harmless. The use of such demonstrative evidence, even in good faith, strikes at the core principles on which our system is founded. Fair play and substantial justice are the articles of faith to which all involved in the administration of criminal justice subscribe and to which all are constitutionally bound. Prosecutorial tactics such as those exhibited here push against the very limits of acceptable behavior under this rubric. While I am persuaded that the line was not crossed, I am equally certain that this court’s tolerance for such tactics nears its brim.