People v. Johnson

MOSK, J., Concurring and Dissenting.

I concur in the affirmance of the judgment of guilt as to the murder of Luisa Anna Castro and Maria Victoria Holmes and the arson of their residence. I also concur in the affirmance of the judgment of imprisonment for the arson. After review, I have found no error or other defect that requires reversal on either issue. 1

I dissent, however, from the affirmance of the judgment in other respects, specifically, the multiple-murder special-circumstance finding and the sentence of death which depends on that finding’s validity.

In its charge at the guilt phase, the trial court failed to instruct the jury that in order to find the multiple-murder special-circumstance allegation true, it was required to find that defendant acted with intent to kill. At that time, intent to kill was an element of the multiple-murder special circumstance. (People v. Turner (1984) 37 Cal.3d 302, 328-329 [ 208 Cal.Rptr. 196 , 690 P.2d 669 ], overruled, People v. Anderson (1987) 43 Cal.3d 1104, 1149 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ].)

The trial court’s instructional omission of an element of a special circumstance is subject to harmless-error analysis under Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ] (sometimes hereafter Chapman). That is the holding of People v. Odle (1988) 45 Cal.3d 386, 410-415 [ 247 Cal.Rptr. 137 , 754 P.2d 184 ] (sometimes hereafter Odle).

*56 In Yates v. Evatt (1991) 500 U.S. 391 [ 114 L.Ed.2d 432 , 111 S.Ct. 1884 ] (sometimes hereafter Yates), and Sullivan v. Louisiana (1993)_U.S. _ [ 124 L.Ed.2d 182 , 113 S.Ct. 2078 ], the United States Supreme Court provided the following explanation.

“The Chapman test is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict [or finding] obtained.’ ” (Yates v. Evatt, supra, 500 U.S. at pp. 402-403 [ 114 L.Ed.2d at p. 448 , 111 S.Ct. at p. 1892 ]; accord, Sullivan v. Louisiana , supra,_U.S. at pp. [124 L.Ed.2d at pp. 188-190, 113 S.Ct. at pp. 2081-2082].) “To say that an error did not contribute to the verdict [or finding] is . . .to find that error unimportant in relation to everything else the jury considered on the issue in question . . . .” (Yates v. Evatt, supra, 500 U.S. at p. 403 [ 114 L.Ed.2d at p. 449 , 111 S.Ct. at p. 1893 ]; accord, Sullivan v. Louisiana, supra, _U.S. at pp._-_[124 L.Ed.2d at pp. 188-190, 113 S.Ct. at pp. 2081-2082].)

Thus, the focus under Chapman is what the jury actually decided and whether the error may have tainted its decision. “[T]he issue ... is whether the jury actually rested its verdict [or finding] on evidence [and instructions] . . . , independently of the” error. (Yates v. Evatt, supra, 500 U.S. at p. 404 [ 114 L.Ed.2d at p. 449 , 111 S.Ct. at p. 1893 ].) Stated differently, the question is “what effect [the error] had upon the guilty verdict [or adverse finding] in the case at hand.” (Sullivan v. Louisiana , supra,_U.S. at p._ [ 124 L.Ed.2d at p. 189 , 113 S.Ct. at p. 2081 ].) Or in still other words, the inquiry is “whether the . . . verdict [or finding] actually rendered in [the] trial was surely unattributable to the error.” (Ibid.)

As a consequence, the focus under Chapman is not what a reviewing court might itself decide if it looked to the entire record.

First, the reviewing court is not the proper decisionmaker. (Sullivan v. Louisiana , supra,_U.S. at pp._-_[124 L.Ed.2d at pp. 188-190, 113 S.Ct. at pp. 2081-2082].) The Yates court disapproved as “not.. correct” the “statement” in Rose v. Clark (1986) 478 U.S. 570, 579 [ 92 L.Ed.2d 460, 471 , 106 S.Ct. 3101 ] (sometimes hereafter Clark), that an error is harmless “ ‘[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt[.]’ ” (Yates v. Evatt, supra, 500 U.S. at pp. 402-403, fn. 8 [ 114 L.Ed.2d at p. 448 , 111 S.Ct. at p. 1892 ], quoting Rose v. Clark, supra, 478 U.S. at p. 579 [ 92 L.Ed.2d at p. 471 ].)

Second, the reviewing court is not automatically entitled to consider the entire record. The Yates court rejected the broad “assumption” in various decisions, including Clark (which, however, it did not expressly cite on this *57 point), that the “harmlessness of an error is to be judged after a review of the entire record”—unless, that is, the “jurors, as reasonable persons, would have considered the entire . . . record" in spite of the error. (Yates v. Evatt, supra, 500 U.S. at pp. 405-406 [114 L.Ed.2d at pp. 449-450, 111 S.Ct. at p. 1894 ].)

By its very terms, of course, Chapman precludes a court from finding harmlessness based simply “upon [its own] view of ‘overwhelming evidence.’ ” (Chapman v. California, supra, 386 U.S. at p. 23 [ 17 L.Ed.2d at p. 710 ].)

Neither is the focus under Chapman what a reviewing court might conjecture the jury would have decided in the absence of the error. The “hypothetical inquiry” whether, if the jury had not been exposed to the error, it would have made the decision it did “is inconsistent with the harmless-error standard announced in Chapman .... While such a hypothetical inquiry ensures that the State has, in fact, proved [the fact in question] beyond a reasonable doubt, it does not ensure that it has proved [it] beyond a reasonable doubt to the satisfaction of a jury.” (Yates v. Evatt, supra, 500 U.S. at p. 414 [ 114 L.Ed.2d at p. 455 , 111 S.Ct. at p. 1898 ], italics in original (conc. opn. of Scalia, J.); accord, Sullivan v. Louisiana , supra,_U.S. at pp._-_ [124 L.Ed.2d at pp. 188-190, 113 S.Ct. at pp. 2081-2082].) “The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict [or adverse finding] would surely have been rendered . . . .” (Sullivan v. Louisiana , supra,_U.S. at p._[ 124 L.Ed.2d at p. 189 , 113 S.Ct. at p. 2081 ].)

Lastly, the focus under Chapman is not what a reviewing court might speculate concerning “what effect the . . . error might generally be expected to have upon a reasonable jury . . . (Sullivan v. Louisiana , supra,_U.S. at p--[ 124 L.Ed.2d at p. 189 , 113 S.Ct. at p. 2081 ].) “[M]ore [is required] than appellate speculation about a hypothetical jury’s action . . .' ." (Id. at p. _ [ 124 L.Ed.2d at p. 190 , 113 S.Ct. at p. 2082 ].)

In determining whether the trial court’s omission of an instruction on intent to kill as an element of the multiple-murder special circumstance was harmless beyond a reasonable doubt under Chapman, we may look with profit to Yates itself.

The error reviewed therein involved an instruction incorporating a mandatory rebuttable presumption of malice for the crime of murder: “Malice is . . . presumed” both “from the willful, deliberate, and intentional doing of an unlawful act without any just cause or excuse” and “from the use of a deadly weapon"; but “that presumption is rebuttable, that is, it is not *58 conclusive . . . , but it is rebuttable by the rest of the evidence." (Quoted in Yates v. Evatt, supra, 500 U.S. at p. 397 [ 114 L.Ed.2d at p. 444 , 111 S.Ct. at p. 1889 ].)

The Yates court established the following analysis for an erroneous instruction incorporating a mandatory rebuttable presumption of a necessary fact.

“[T]o say that an instruction to apply [such a] presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption.

“Before reaching such a judgment, a court must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict. . . . Did the jury look at only the predicate facts, or did it consider other evidence bearing on the fact subject to the presumption?

“Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman’s reasonable doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.” (Yates v. Evatt, supra, 500 U.S. at p. 404 [ 114 L.Ed.2d at p. 449 , 111 S.Ct. at p. 1893 ].)

The Yates court went on to suggest an even more “restrictive” analysis for an erroneous instruction incorporating a mandatory irrebuttable or “conclusive” presumption of a necessary fact. (Yates v. Evatt, supra, 500 U.S. at p. 406, fn. 10 [ 114 L.Ed.2d at p. 450 , 111 S.Ct. at p. 1894 ].) Review of this sort, which the court expressly derived from Justice Scalia’s concurring opinion in Carella v. California (1989) 491 U.S. 263 [ 105 L.Ed.2d 218 , 109 S.Ct. 2419 ], “would focus only on the predicate facts to be relied on under the presumption and would require a court to determine whether they ‘are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact.’ ” (Yates v. Evatt, supra, 500 U.S. at p. 406, fn. 10 [ 114 L.Ed.2d at p. 450 , 111 S.Ct. at p. 1894 ], quoting Carella v. California, supra, 491 U.S. at p. 271 [105 L.Ed.2d at pp. 225-226] (conc. opn. of Scalia, J.).) This “narrow focus” is appropriate “because the terms of a conclusive presumption tend to deter a jury from *59 considering any evidence for the presumed fact beyond the predicate evidence; indeed, to do so would be a waste of the jury’s time and contrary to its instructions." (Yates v. Evatt, supra, 500 U.S. at p. 406, fn. 10 [ 114 L.Ed.2d at p. 450 , 111 S.Ct. at p. 1894 ].)

It follows that an analysis more restrictive still would be required for an erroneous instruction omitting a necessary fact altogether.

Such an instruction removes the “ultimate fact” from the jury’s consideration without leaving behind any “predicate facts” to be found. If a mandatory irrebuttable presumption “tend[s] to deter a jury from considering any evidence for the presumed fact beyond the predicate evidence” (Yates v. Evatt, supra, 500 U.S. at p. 406, fn. 10 [ 114 L.Ed.2d at p. 450 , 111 S.Ct. at p. 1894 ]), an omission, by definition, withdraws the omitted fact entirely.

“Therefore,” reasoned the United States Court of Appeals for the Ninth Circuit in United States v. Gaudin (9th Cir. 1993) 997 F.2d 1267, 1272 (sometimes hereafter Gaudin), rehearing en banc granted, 5 F.3d 374 , “it is apparent that when [a necessary fact] has been completely removed from the jury’s determination, there can be no inquiry into what evidence the jury considered to establish that [fact], because the jury was precluded from considering the [fact] at all. The fact that evidence existed, which the jury could have considered on the issue .... had the issue been submitted to the jury under an appropriate instruction, is of no moment . . . .” (Italics in original.)

In a situation in which the necessary fact that is omitted is an element, prejudice appears as a matter of law: “[U]nder Yates,” held the Gaudin court, “when an element... is removed from jury consideration, that error cannot be harmless.” (United States v. Gaudin, supra, 997 F.2d at p. 1272 .)

Turning now to the case at bar, I am compelled to conclude that the trial court’s omission of an instruction on intent to kill as an element of the multiple-murder special circumstance was not harmless beyond a reasonable doubt under Chapman. The rule stated above controls the result: the instructional omission of an element, like that here, cannot be harmless.

In arriving at my conclusion, I do not overlook the strong evidence of intent to kill. The majority view that evidence as “overwhelming." (Maj. opn., ante, at pp. 45, 46.) I tend to agree.

But generally, as explained above, the presence of “overwhelming evidence” is insufficient. The majority seek to avail themselves of an exception *60 that apparently operates when an element is not omitted but is merely undermined by an improper rebuttable presumption. That condition, however, is not satisfied on this record. The intent-to-kill element of the multiple-murder special circumstance was in fact omitted.

Moreover, in the specific situation here disclosed, the presence of “overwhelming evidence” is completely immaterial. “Under the guidance of Yates , we may no longer consider the strength of the evidence and determine whether it is so clear that the jury would have found the element to exist had it been properly instructed . . . .” (United States v. Gaudin, supra, 997 F.2d at p. 1272 , italics in original.) This is because “when an element ... is removed from jury consideration, that error cannot be harmless.” (Ibid.) Contrary to the majority’s implication, it matters not that the intent-to-kill element of the offense of first degree willful, deliberate, and premeditated murder—which is not at issue—was not removed. The fact is, the intent-to-kill element of the multiple-murder special circumstance—which is at issue —was.

I recognize that in People v. Odle, supra, 45 Cal. 3d 386—on which the majority’s discussion depends—this court relied on and reiterated the statement in Rose v. Clark, supra, 478 U.S. 570, 579 [ 92 L.Ed.2d 460, 471 ], that an error is harmless “[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt . . . .” (See People v. Odle, supra, 45 Cal.3d at pp. 413, 414, 416.) But, as noted, the Yates court disapproved this “statement” as “not . . . correct.” (Yates v. Evatt, supra, 500 U.S. at pp. 402-403, fn. 8 [ 114 L.Ed.2d at p. 448 , 111 S.Ct. at p. 1892 ].) Hence, on this point Odle is no longer good law.

I also recognize that in Odle this court accepted and applied the broad “assumption” in Clark , among other decisions, that the “harmlessness of an error is to be judged after a review of the entire record.” (Yates v. Evatt, supra, 500 U.S. at p. 405 [114 L.Ed.2d at pp. 449-450, 111 S.Ct. at p. 1894 ].) But, as noted, the Yates court rejected this “assumption.” (Ibid.) Hence, on this point too, Odle is no longer good law. 2

*61 For the foregoing reasons, I would reverse the judgment as to the multiple-murder special-circumstance finding and the dependent sentence of death.

Appellant’s petition for a rehearing was denied January 12, 1994. Mosk, J., was of the opinion that the petition should be granted.

In passing, I state my view that there was no Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) violation by the police during their interview of defendant on March 28,1986. Defendant did not invoke his right to counsel when he stated, “Maybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder." In context, it is plain that he was simply playing for time as he probed his interrogators in preparation for an attempt at “plea bargaining.” The cases he cites on appeal are factually distinguishable. Similarly, he did not invoke his right to silence when he expressed his desire, on two occasions, to go “off the record.” In context, it is plain that he was simply attempting to open, and then continue, “plea bargaining.” Here too, the cases he cites on appeal are factually distinguishable. In People v. Braeseke (1979) 25 Cal.3d 691, 702-703 [ 159 Cal.Rptr. 684 , 602 P.2d 384 ], judgment vacated and case remanded sub nomine California v. Braeseke (1980) 446 U.S. 932 [ 64 L.Ed.2d 784 , 100 S.Ct. 2147 ], reiterated in its entirety (1980) 28 Cal.3d 86 [ 168 Cal.Rptr. 603 , 618 P. 2d 149 ]; we stated: “A request to speak ‘off the record’ cannot constitute a knowing and intelligent waiver of rights which include the advisement that ‘anything [a suspect] says can be used against him in a court of law.’ [Citations.] Indeed, [Braeseke’s] request revealed a marked lack of understanding of the Miranda warnings.” In this case, by contrast, defendant’s twice-expressed desire to go “off the record” did not even purport to constitute a waiver; he had already effected one. Neither did it reveal any lack of understanding of the Miranda warnings on his part; rather, it disclosed an effort to change his role in the interview from that of “subject” to “negotiator.”

It might perhaps be argued that the rule that the instructional omission of an element cannot be harmless allows of one or more of the following “exceptions”: (1) the element pertained only to a charge rejected by the jury; (2) the element was admitted by the defendant; and (3) the element was necessarily found by the jury under other, proper instructions. Support for such a position may be found in People v. Garcia (1984) 36 Cal.3d 539, 554-555 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ], as well as in Justice Blackmun’s earlier plurality opinion in Connecticut v. Johnson (1983) 460 U.S. 73, 87 [ 74 L.Ed.2d 823, 834-835 , 103 S.Ct. 969 ], and in Justice Scalia’s later concurring opinion in Carella v. California, supra, 491 U.S. 263, *61 270-271 [ 105 L.Ed.2d 218, 224-225 ], The point need not be resolved here. In this case, none of these “exceptions” is applicable.