People v. Fudge

KENNARD, J., Concurring and Dissenting.

I concur in the majority’s affirmance of defendant’s convictions for five counts of murder and a multiple-murder special circumstance. But I cannot join the majority in affirming the sentence of death.

The United States Supreme Court has held that the Eighth Amendment entitles a capital defendant, irrespective of the heinous nature of the crime or crimes committed, to offer evidence that if spared execution, but incarcerated, the defendant would not pose a danger to the community. “[A] defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentence determination.” (Skipper v. South Carolina (1986) 476 U.S. 1, 7 [ 90 L.Ed.2d 1, 8 , 106 S.Ct. 1669 ].)

At the penalty phase of this capital case, the defense proffered two expert witnesses—a former warden and a prison chaplain—who were prepared to testify that prisoners sentenced to life imprisonment without possibility of *1130 parole generally are model prisoners and conform to prison rules, and that defendant, if given such a sentence, would adjust well to the prison environment. The majority concedes that the trial court erred in not allowing this testimony. It concludes, however, that the error was harmless. I disagree.

In assessing prejudice, the critical inquiry is whether we, as a reviewing court, can conclude beyond a reasonable doubt that the excluded evidence would not have affected the jury’s verdict of death. Because I cannot say with the required degree of confidence that the jury, had it been permitted to hear the erroneously excluded evidence, would nevertheless have concluded that defendant should be executed, I would reverse the judgment of death.

I

At the guilt phase of defendant’s capital trial, the prosecution presented evidence that defendant and a fellow gang member went to a party attended by members of a rival gang, drew guns, and opened fire. The jury convicted defendant of five counts of murder. It also found true a multiple-murder special-circumstance allegation, which rendered defendant eligible for the death penalty. (Pen. Code, § 190.2, subd. (a)(3).) Defendant was 18 years old and had no prior history of violence.

At the penalty phase, defendant called as a witness Lawrence Wilson, a retired prison warden. Wilson stated that he had served with the California Department of Corrections for 26 years, from 1944 to 1970, during which time he held positions as Deputy Warden at Folsom state prison, Warden of Soledad and San Quentin prisons, and Deputy Director of the Department of Corrections in Sacramento. At this juncture, the prosecutor, in a side-bench conference, questioned whether Wilson could offer relevant evidence. He asked the trial court to direct the defense to provide an offer of proof regarding the nature of Wilson’s proposed testimony. A lengthy discussion ensued between the court and both counsel, out of the jury’s presence.

The trial court first ruled, correctly, that Warden Wilson could not testify about the manner in which executions are carried out. The parties then debated whether Wilson could testify about defendant’s likely behavior while serving a sentence of life imprisonment without possibility of parole. The trial court asked defense counsel for a detailed offer of proof on this issue, and permitted him to make the requisite showing by having Wilson testify.

Outside the jury’s presence, Warden Wilson gave this testimony: Unlike prisoners sentenced to death, who are segregated from the remainder of the *1131 prison population, those serving life sentences are housed in the “mainline” with other inmates. In Wilson’s experience, prisoners serving life sentences are unlikely to have disciplinary problems, are relied on by prison officials to control the other inmates, and often have a positive influence on prisoners who are not serving life terms. After talking to defendant for nearly an hour, Wilson concluded that defendant would adjust well as a life prisoner. Wilson knew that defendant had been a gang member, and that gangs were active in prison, but in his view defendant appeared genuine in his desire to disassociate himself from gang-related activity.

On cross-examination by the prosecution, Warden Wilson acknowledged that since his retirement, which occurred 17 years before the trial in this case, California prisons had “changed.” The prosecutor, however, did not ask Wilson to describe those changes. Wilson also acknowledged that only some of the life prisoners he had observed during his tenure were serving sentences that precluded all possibility of parole. The others, by contrast, were eligible for parole, and therefore had an incentive to show the parole board that they were appropriate candidates for release; defendant, if sentenced to life without the possibility of parole, would not have this incentive. The prosecutor then asked Wilson if his belief that defendant would make a good life prisoner would be affected if he knew that defendant had threatened a witness while in jail awaiting trial. Wilson replied that he did not know of the threat, but that any such threat would not alter his opinion.

In the course of making the offer of proof, defense counsel represented to the trial court that Byron Eshelman, a retired prison chaplain, would, if called as a witness, offer testimony similar to Warden Wilson’s.

The trial court refused to permit Warden Wilson and Chaplain Eshelman to testify on defendant’s behalf, finding that their proposed testimony was irrelevant, lacked an adequate foundation, and would “usurp[] the jury’s function and invade[] the province of the jury.” Following this ruling, the defense called defendant’s mother and his grandmother as witnesses at the penalty phase. In the presence of the jury, they briefly described the schools defendant had attended and the relatives with whom he had lived. They said that defendant believed in God and was protective of his mother, and that they loved him. They asked the jury to spare defendant’s life.

The prosecution offered no evidence at the penalty phase.

II

The majority concedes that the trial court erred in not allowing Warden Wilson and Chaplain Eshelman to testify on behalf of defendant at the *1132 penalty phase. Under the Eighth Amendment to the federal Constitution, the trier of fact must be permitted to consider in mitigation, at the penalty phase of a capital case, “ ‘any aspect of a defendant’s character . . . that the defendant proffers as a basis for a sentence less than death.’ ” (Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [ 71 L.Ed.2d 1, 8 , 102 S.Ct. 869 ].) This court explained recently: “[Consideration by the sentencer of any mitigating aspect of ‘ “the character and record of the individual offender and the circumstances of the particular offense” ’ is ‘ “a constitutionally indispensable part of the process of inflicting the penalty of death.” ’ ” (People v. Bacigalupo (1993) 6 Cal.4th 457, 466 [ 24 Cal.Rptr.2d 808 , 862 P.2d 808 ].)

Evidence that the defendant, if given a sentence less than death, will not pose a danger to others, is a form of character evidence that falls within this rule. In the words of the United States Supreme Court in Skipper v. South Carolina, supra, 476 U.S. at page 5 [ 90 L.Ed.2d at page 7 ]: “[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. . . . [S]uch evidence may not be excluded from the sentencer’s consideration.”

Here, in precluding the jury from hearing testimony by Warden Wilson and Chaplain Eshelman that defendant was likely to be a good prisoner if sentenced to life imprisonment without possibility of parole, the trial court violated defendant’s constitutional right to offer potentially mitigating evidence. (Skipper v. South Carolina, supra, 476 U.S. at p. 5 [ 90 L.Ed.2d at p. 7 ]; see also People v. Lucero (1988) 44 Cal.3d 1006, 1026-1029 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] [trial court’s exclusion of expert prediction that the defendant would adjust well in a prison setting was prejudicial error].)

Was the error prejudicial? The majority concludes it was harmless. I do not share that view.

In Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ], the high court stated that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Id. at p. 24 [17 L.Ed.2d at pp. 710-711].) When, as here, the violation of the federal Constitution occurs at the penalty phase of a capital trial, a reviewing court must proceed with particular caution. (People v. Haskett (1990) 52 Cal.3d 210, 253 [ 276 Cal.Rptr. 80 , 801 P.2d 323 ] (dis. opn. of Mosk, J.); see Satterwhite v. Texas (1988) 486 U.S. 249, 258 [ 100 L.Ed.2d 284, 295 , 108 S.Ct. 1792 ] [“the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to *1133 the sentencer”].) In evaluating the effect of the error, the reviewing court does not consider whether a judgment of death would have been rendered in a hypothetical trial in which the error did not occur; rather, it must decide whether the death sentence in this trial was “surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S____[ 124 L.Ed.2d 182, 189 , 113 S.Ct. 2078, 2081 ].)

In this case, the jury deliberated for five days before reaching its penalty verdict. The explanation for these protracted penalty deliberations cannot be found in the volume of evidence the jury was required to review and evaluate, for the prosecution presented no evidence at the penalty phase and the testimony of the two defense witnesses was brief. Thus, reviewing the relevant evidence was a relatively simple chore. A more plausible explanation for the length of the penalty deliberations—indeed the only plausible explanation—is that the jury found the selection of the appropriate penalty in this case to be a close and difficult issue.

Although the killing of five people must have weighed heavily in favor of the ultimate penalty of death, other considerations favored the less extreme penalty of life imprisonment without possibility of parole. One such consideration was defendant’s youth. He committed the murders five months after his eighteenth birthday; thus, he would have been ineligible for the death penalty had he been just five months younger (Pen. Code, § 190.5). 1 Another consideration weighing against the death penalty was defendant’s prior criminal record or, more precisely, the lack thereof. Had defendant been previously convicted of any felony, or had he committed any previous criminal act of violence, the prosecution could have offered evidence of the conviction or act as a circumstance in aggravation. (Pen. Code, § 190.3, factors (b), (c).) Because the prosecution made no such showing, the jury was required to conclude that the capital murders were defendant’s first criminal acts of violence and resulted in his first felony conviction.

According to the majority, the trial court’s erroneous refusal to permit Warden Wilson and Chaplain Eshelman to testify was harmless in view of the nature of defendant’s offense—the murder of five persons, including a thirteen-year-old child—which the majority characterizes as .“powerful aggravating evidence.” (Maj. opn., ante, p. 1118.) But the evidence of defendant’s guilt was not overwhelming. In a previous trial of these murders, the *1134 jury was unable to reach a verdict as to defendant’s guilt; his codefendant, tried by a separate jury, was acquitted. In this case, the jurors deciding penalty may well have harbored some lingering doubts that defendant was one of the gunmen who committed these murders; under our law, they were entitled to consider these doubts at the penalty phase of trial. (People v. Johnson (1992) 3 Cal.4th 1183, 1252 [ 14 Cal.Rptr.2d 702 , 842 P.2d 1 ]; People v. Cox (1991) 53 Cal.3d 618, 677-678 [ 280 Cal.Rptr. 692 , 809 P.2d 351 ].)

The majority suggests that the facts of this case are similar to those of People v. Robertson (1989) 48 Cal.3d 18 [ 255 Cal.Rptr. 631 , 767 P.2d 1109 ]. Not so. In Robertson, the defendant contended that the trial court, sitting without a jury as trier of fact at the penalty phase of a capital case, had erroneously refused to consider evidence that the defendant would not pose a future danger to the community or to other inmates. We rejected this contention, holding that the trial court had properly considered the evidence, and thus committed no error. We further concluded in Robertson that even assuming the trial court had not considered the evidence, any error was harmless in light of the overwhelming aggravating circumstances.

Here the majority asserts that because in People v. Robertson, supra, 48 Cal.3d 18 , we found any error to be harmless in light of the strong evidence in aggravation, we must do the same here. This assertion is analytically flawed in two respects. First, because we held that the trial court in Robertson committed no error, our discussion of the prejudicial effect of an error that did not occur was mere dictum. Second, and more important, the facts of Robertson and the facts of this case are completely different. Unlike the situation here, the murders in Robertson exhibited an extreme degree of sadism and cruelty. 2 Also, Robertson was in his mid-30’s, and had a long history of torturing and sexually assaulting both men and women. By contrast, here defendant was 18 years old when he committed the murders, and he had no prior history of violence.

The proposed testimony of Warden Wilson and Chaplain Eshelman formed a major part of defendant’s intended case in mitigation at the penalty phase. Because defendant was only 18 years old when he committed the murders, he would be incarcerated for many decades if sentenced to life without the possibility of parole. Defendant’s need to reassure the jury that he would not pose a danger to others during his long incarceration was *1135 therefore critical. When the trial court excluded the testimony of Warden Wilson and Chaplain Eshelman, it deprived the defense of the opportunity to provide that reassurance. The court’s ruling left defendant with only two witnesses, his mother and grandmother, who testified briefly about his childhood but could offer the jury no enlightenment regarding defendant’s future dangerousness. Thus, by precluding defendant from introducing the testimony of Wilson and Eshelman, the trial court did more than simply deny him the opportunity to add inessential details to an otherwise thorough penalty presentation. Rather, by denying defendant the chance to present penalty phase witnesses whose testimony was vital, the trial court gutted his case in mitigation.

Although, as I pointed out earlier, the parties offered little evidence at the penalty phase, the jury struggled long and hard with the decision whether to sentence defendant to death. Had defendant been permitted to offer expert testimony by Warden Wilson and Chaplain Eshelman that he was likely to behave well in a prison setting, the jury might well have been persuaded to spare his life. Therefore, I cannot conclude, beyond a reasonable doubt, that the jury’s verdict was unaffected by the trial court’s erroneous exclusion of that testimony. “In such circumstances, we must put aside any personal beliefs as to the propriety of the penalty of death, and allow the jury to make its own decision based on all the evidence . . . .” (People v. Mayfield (1993) 5 Cal.4th 142, 219 [ 19 Cal.Rptr.2d 836 , 852 P.2d 331 ] (dis. opn. of Kennard, J.).)

For these reasons, I would reverse the judgment of death.

Mosk, J., and Kremer, J., * concurred.

Appellant’s petition for a rehearing was denied August 24,1994. Mosk, J„ and Kennard, J., were of the opinion that the petition should be granted.

Under the law in effect when defendant committed the killings, murderers under the age of 18 could not even be sentenced to life without possibility of parole. (People v. Spears (1983) 33 Cal.3d 279, 283 [ 188 Cal.Rptr. 454 , 655 P.2d 1289 ].) Under current law, a defendant who commits a murder with special circumstances before turning 18 still may not be sentenced to death, but may be sentenced to life imprisonment without possibility of parole. (Pen. Code, § 190.5.)

In People v. Robertson, supra, 48 Cal.3d 18 , the defendant kidnapped, raped, tortured, and murdered two women, in unrelated incidents a week and a half apart. The trial court concluded, based on “ ‘the extreme mutilation of the bodies before and after death,’ ” that the defendant obtained gratification from inflicting pain on his victims. (Id. at p. 56.)

Presiding Justice, Court of Appeal, Fourth Appellate District, Division One, assigned by the Acting Chairperson of the Judicial Council.