People v. Kelly

WERDEGAR, J., Concurring.

The determination whether and to what extent to admit a videotape of the victim’s life at the penalty phase of a capital case is within the sound discretion of the trial court. Nevertheless, as the majority recognizes (maj. opn., ante, at p. 796), we have previously cautioned courts against the “routine admission of videotapes featuring the victim.” (People v. Prince (2007) 40 Cal.4th 1179, 1289 [ 57 Cal.Rptr.3d 543 , 156 P.3d 1015 ].) We have recognized the “strong possibility” that a presentation that “lasts beyond a few moments, or emphasizes the childhood of an adult victim, or is accompanied by stirring music . . . itself may assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewing still photographs of the victim or listening to *802 the victim’s bereaved parents.” (Ibid.) For this reason, trial courts “must exercise great caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the victim.” (Ibid.)

Insofar as the majority opinion, consistent with our pronouncement in Prince, stands for the proposition that it is an abuse of discretion to admit a videotape that is unduly lengthy, has elements of theatricality in the use of evocative music and visions of the victim’s place in the hereafter, and goes beyond a factual presentation of the victim as she was in life, I concur. Such was the videotape in this case. As Justice Moreno observes in his separate opinion, it was more akin to a eulogy than to conventional victim-impact evidence. (Cone. & dis. opn. of Moreno, J., post, at p. 805.) The trial court therefore erred in admitting it without requiring that it be modified.

For the reasons stated by both the majority opinion and Justice Moreno, however, I conclude admission of the videotape in its entirety was nonprejudicial. I therefore concur in the court’s judgment.