# People v. Marshall

> California Supreme Court · August 7, 1996 · 13 Cal. 4th 799

URL: https://www.frixlaw.com/law-library/cases/9849128

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. GEORGE EDWARD MARSHALL, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 7, 1996
- **Citations:** 13 Cal. 4th 799; 96 Daily Journal DAR 9599; 55 Cal. Rptr. 2d 347; 919 P.2d 1280; 96 Cal. Daily Op. Serv. 5894; 1996 Cal. LEXIS 3987
- **Precedential status:** Published
- **Opinion:** Concurring in part by Kennard
- **Judges:** Werdegar, Kennard, Mosk
- **Cited by:** 365 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/9849128

## How later opinions describe it (automated extraction)

- noting a defendant’s blood-alcohol content may “suggest[] some impairment, as might have rendered [defendant] an unsafe driver,” but the same record did “not support a conclusion that . . . defendant was unable to premeditate or form an intent to kill”
- holding manslaughter instruction unnecessary when “relations between defendant and [the victim] ... were generally smooth and harmonious”

## Opinion text

KENNARD, J., Concurring and Dissenting.
I join the majority in affirming defendant’s convictions on three counts of first degree murder and one count of attempted murder. I would, however, reverse the judgment of death.
I disagree with the majority’s resolution of two issues that arose during the guilt phase of defendant’s capital trial. The first issue involves the trial court’s denial of defendant’s midtrial motion for discovery of certain prison records that defendant claimed he needed to cross-examine a prosecution witness on the latter’s mental competence and ability to testify truthfully. *867 The majority considers the trial court’s denial of the discovery motion to be harmless error. In my view, there was no error.
The second issue pertains to the trial court’s decision not to have the jury consider the truth or falsity of the special circumstance allegation that, as phrased in the statutory language, “defendant has in this proceeding been convicted of more than one offense of murder in the first or second degree.” (Pen. Code, § 190.2, subd. (a)(3).) The trial court made that decision when it submitted the issue of guilt or innocence on the criminal charges to the jury towards the end of the guilt phase of defendant’s capital trial. The court reasoned that if the jury were to return guilty verdicts on at least one count of first degree murder and one additional count of murder in the first or second degree, the jury would have made all of the factual findings necessary to find the existence of the multiple-murder special circumstance. Consequently, in the court’s view, it would be superfluous to require the jury to make a specific finding on the multiple-murder special-circumstance allegation. When, following deliberations, the jury returned a verdict of guilt on three counts of first degree murder, the case proceeded to the penalty phase of the trial for a determination by the jury whether defendant should be sentenced to death or to life imprisonment without parole.
Under California law, a defendant in a capital case becomes eligible for the death penalty only after a finding by the jury that at least one special circumstance allegation is true. Such a finding is therefore a critical component of our capital scheme. Here, the trial court’s ruling, which violated the express statutory requirement that the jury “make a special finding on the truth of each alleged special circumstance” (Pen. Code, § 190.4, subd. (a)), denied defendant his constitutional right to a jury determination on that issue. Recently, in United States v. Gaudin (1995) 515 U.S__[ 132 L.Ed.2d 444 , 115 S.Ct. 2310 ] and in Sullivan v. Louisiana (1993) 508 U.S. 275 [ 124 L.Ed.2d 182 , 113 S.Ct. 2078 ], the United States Supreme Court stressed that the right to a trial by jury, as guaranteed by the Sixth Amendment to the federal Constitution, encompasses more than having a jury determine the factual components necessary to a verdict; the right to jury trial, at base, is the right to have a jury determine the ultimate question of guilt or innocence. Here, the ultimate question was whether defendant was guilty or innocent of capital murder, that is, murder that would render him eligible for the death penalty. Because the trial court removed that determination of ultimate guilt from the jury’s consideration when it prevented the jury from making a specific finding on the truth or falsity of the special circumstance allegation, defendant was deprived of his Sixth Amendment right to a jury trial on that issue.
*868 I
Defendant was charged with fatally shooting three people: his wife (Cynthia Marshall), his wife’s 13-year-old brother (Jeffrey Lee), and a boarder (Henry Thomas). He was also accused of attempting to murder Annette May, who was sleeping in Thomas’s bed when she was shot.
Prosecution witness Gary Brady testified that while he and defendant were confined in the Stanislaus County jail, defendant admitted he had shot his wife, a “small kid”, and “a lady and a guy in the bedroom” with “a high-powered rifle.” Defendant said that he had killed his wife because he “would rather see his wife dead than her leave him,” and that he had shot the boy for witnessing the killing. Defendant added that after the shootings he wiped off the gun and left it on the floor; he then took money from the kitchen table to make it look as if the killings were committed in the course of a robbery.
Before defense counsel’s cross-examination of Brady, the parties engaged in a lengthy debate regarding the extent to which defendant could question Brady about his involvement in another capital case. 1 The following colloquy then took place:
“Mr. Dunford [defense counsel]: Yes, I haven’t mentioned this to [the prosecutor], . . . but there is some indication Mr. Brady, as a result of a [Penal Code section] 1368 hearing [to determine a defendant’s competence to stand trial], was committed to Patton State Hospital and may be impeachable on the ground of his mental competence, and I believe that to be discoverable. [*]D What I wish to have, because I just interviewed him yesterday an hour before he went on the stand, what I wish to have is the Department of Corrections jacket. In order to effectively cross-examine him. I make that motion that that be made available.
“The Court: Well, I am going to deny that particular motion. He was committed to Patton State Hospital out of this County and escaped, as you probably well know, and all of this occurred substantially before the incident in the jail that we are talking about here. He was apprehended back in, I think, Arkansas after he was wounded on that occasion. [<fl] I don’t know, I don’t believe that he has been committed to Patton State Hospital since then. *869 I would be very surprised if he had been committed to Patton State Hospital because of the security risk that he demonstrated he possessed. It was rather unusual that he got there in the first place.”
After the prosecutor made a comment about the admissibility of Brady’s prior convictions, defense counsel returned to the subject of discovery:
“Mr. Dunford: ... I believe that there may be in the Department of Corrections jacket psychiatric evaluations and other testimony casting a light on the mental capacity of this witness to tell the truth.
“The Court: Well, under the circumstances, as far as I am aware, that would be privileged material, but unless you can furnish me some authority and an order requiring the Department of Corrections to come up with that, I am not going to consider that particular motion. All right.
“Mr. Dunford: Well, so that the record is complete, I am sure the Court considered it and denied it.
“The Court: Well, I have denied it because I am unaware of any authority, number one, for my making an order like that to the Department of Corrections, and until I am satisfied that that prison jacket is not confidential, which I believe it to be, and that it can be the subject of an appropriate order for production, I would not even tentatively consider making the order.
“Mr. Dunford: Thank you, Your Honor.
“The Court: Once the order is made, if it were made, upon a showing of that kind, then, of course, of necessity, it would have to be, I suppose, an in camera review of that matter by the Court to determine what matters should be privileged, what matters might be relevant and what would not be, but I don’t think we have to reach that at the moment.
“Mr. Dunford: The thing I need to know, Your Honor, is whether that motion has been denied with prejudice or whether or not it might be renewed when I have a more persuasive position to support by authorities.
“The Court: It is denied without prejudice.
“Mr. Dunford: Thank you, Your Honor.” (Italics added.)
In Hill v. Superior Court (1974) 10 Cal.3d 812, 816-817 [ 112 Cal.Rptr. 257 , 518 P.2d 1353 , 95 A.L.R.3d 820 ], this court summarized the rules governing discovery in a criminal case as follows:
*870 “A motion for discovery by an accused is addressed to the sound discretion of the trial court, which has the inherent power to order discovery in the interests of justice. [Citations.]
“It has been stated that the basis for granting pretrial discovery to a defendant is the fundamental principle that an accused is entitled to a fair trial [citations], and ‘Absent some governmental requirement that the information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on the issues in the case, and in particular it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits.’ [Citations.]
“An accused, however, is not entitled to inspect material as a matter of right without regard to the adverse effects of disclosure and without a prior showing of good cause. ‘In criminal cases, the trial court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest. [Citations.] Additionally, the court has discretion to deny discovery in the absence of a showing which specifies the material sought and furnishes a “plausible justification” for inspection.’ [Citations.] “‘A showing, however, that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense . . . .” [Citations.]’” (Fn. & italics omitted; accord, People v. Clark (1992) 3 Cal.4th 41, 133 [ 10 Cal.Rptr.2d 554 , 833 P.2d 561 ]; People v. McPeters (1992) 2 Cal.4th 1148, 1171 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ].)
In exercising its discretion, the trial court may consider the timeliness of the discovery motion. As pointed out in Hill v. Superior Court, supra, 10 Cal.3d at page 821 : “Although in general motions for discovery may be made either at or before trial [citations], a motion for discovery of felony conviction records . . . , if made at trial, in many cases might delay the trial if the motion were granted. Such a motion ordinarily should be made at a time when it would not have that effect.” (See also City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134 [ 252 Cal.Rptr. 789 ].)
Applying the standards this court set forth in Hill v. Superior Court, supra, 10 Cal.3d 812, 816-817 ,1 would hold that the trial court in this case did not abuse its discretion in denying, without prejudice, defendant’s motion for *871 discovery of certain records held by the Department of Corrections that defendant asserted he needed in cross-examining prosecution witness Brady on his mental competence and his ability to testify truthfully.
First, the motion was untimely. Defendant made the motion in the midst of trial, following testimony by Brady describing a conversation with defendant that had occurred two years earlier. There is nothing in the record before this court to suggest that the prosecutor had not furnished defendant with reports disclosing Brady’s proposed testimony before the trial commenced or that Brady was in any way a surprise witness. Thus, there appears to be no excuse for defendant’s failure to move for discovery of Brady’s prison records before trial. Accordingly, the trial court acted well within its discretion in denying, without prejudice, defendant’s midtrial motion for discovery.
Second, compliance with defendant’s request for discovery of Brady’s prison records could have resulted in substantial trial delay. (See Hill v. Superior Court, supra, 10 Cal.3d at p. 821 .) The records were not in the possession of the county prosecutor or local law enforcement agencies, but in the possession of the Department of Corrections, the agency that operates the state prison system. Likely, it would have taken that agency at least a few days to locate Brady’s prison records and to bring them from wherever they were being stored to Stanislaus County, where the trial in this case was held. Moreover, once the Department of Corrections’ custodian of records had produced the records in court, privilege no doubt would have been asserted, if not by the Department of Corrections or the prosecutor, then by Brady himself. (See Evid. Code, §§ 1040 [privilege for information acquired in confidence], 1014 [psychotherapist-patient privilege].) As the trial court noted in ruling on defendant’s discovery motion, assertion of privilege would have required the court to hold a hearing to determine the existence of any material in Brady’s prison records that would be discoverable by the defense. (See generally, Pennsylvania v. Ritchie (1987) 480 U.S. 39 [ 94 L.Ed.2d 40 , 107 S.Ct. 989 ] [defendant’s right to fair trial is protected by submitting confidential information to in camera review by trial court]; People v. Boyette (1988) 201 Cal.App.3d 1527, 1532 [ 247 Cal.Rptr. 795 ]; People v. Reber (1986) 177 Cal.App.3d 523 [ 223 Cal.Rptr. 139 ]; see also People v. Webb (1993) 6 Cal.4th 494, 537-538 [ 24 Cal.Rptr.2d 779 , 862 P.2d 779 ] (conc. and dis. opn. of Kennard, J.).) 2
Third, not only was defendant’s discovery request untimely and likely to result in substantial delay of the trial proceedings, but the motion was also *872 made in a manner suggesting that the defense did not attach much importance to obtaining the records in question. The motion was made orally in the midst of trial, it was unaccompanied by any declaration of defense counsel explaining his intended use of the records, and the motion was not supported by any legal authority whatsoever. Thus, defendant’s showing of “plausible justification” (see Hill v. Superior Court, supra, 10 Cal.3d at p. 817 ) was minimal at best.
Given defendant’s failure to make a compelling showing of need for prosecution witness Brady’s prison records, the trial court was understandably reluctant to grant defendant’s motion for discovery of those records. The court did not, however, foreclose the possibility of discovery. The court invited defendant to furnish legal authority supporting his motion for discovery of Brady’s prison records. Defendant chose not to do so, however. Under the totality of circumstances, the trial court did not abuse its discretion when it denied, without prejudice, defendant’s motion for discovery. (People v. Ashmus (1991) 54 Cal.3d 932, 978 [ 2 Cal.Rptr.2d 112 , 820 P.2d 214 ].)
In resolving the discovery issue, the majority uses an analysis with which I disagree. The majority never explicitly addresses whether the trial court abused its discretion when it denied defendant’s motion for discovery. The majority holds, however, that there is “no reasonable probability the outcome of [defendant’s] case would have been different” if the discovery motion had been granted. (Maj. opn., ante, at p. 842.) The majority bases this conclusion on these assertions: (1) Defendant “extensively impeached” Brady with “evidence of his prior criminal history, his involvement in other crimes, and the inducements for his testimony”; (2) the psychiatric records of witness Brady would have been minimally relevant because his commitment to Patton State Hospital occurred in 1977, four years before defendant confessed the murder to him and six years before defendant’s trial; and (3) the jury in this case “heard Brady’s version of his diagnosis and its significance,” which raised questions about Brady’s mental stability. (Ibid.) Although I conclude that there was no error, I am not persuaded by the majority’s reasons that any error was harmless. 3
The majority points to defendant’s “extensive impeachment” of prosecution witness Brady with Brady’s lengthy criminal record and with the *873 promise of leniency he received in exchange for his testimony (Brady was to receive no more than a two-year sentence on a pending robbery charge). But this impeachment, which the prosecutor no doubt anticipated when he decided to use Brady as a prosecution witness, did not destroy Brady’s credibility so completely that no reasonable juror would have believed his testimony. Because Brady’s credibility remained an important issue, further impeachment may well have affected the outcome.
Nor do I agree with the majority that simply because Brady’s commitment to Patton State Hospital predated defendant’s trial by six years, Brady’s psychiatric records necessarily would have been only minimally relevant to his testimony at defendant’s trial. For example, if the psychiatric records would have revealed a tendency by Brady to “make up” conversations or indicated that he could not differentiate between reality and fantasy, such information (even if six years old) would have severely discredited Brady’s account of defendant’s admission of the three murders and thus would have been more than minimally relevant. Because Brady’s psychiatric records were never brought into court, however, they were not made a part of the record on appeal and we therefore do not know their contents. Accordingly, it is sheer speculation for the majority to reach any conclusions about the possible effect upon the jury of impeaching Brady with information from his prison psychiatric records.
Finally, I disagree with the majority that defendant could not have been prejudiced by the trial court’s discovery ruling because, in the majority’s words, “the jury heard Brady’s version of his diagnosis and its significance.” (Maj. opn., ante, at p. 842.) When defense counsel questioned Brady upon cross-examination about a psychiatric evaluation that Brady had received just before his release from state prison, Brady gave the following explanation of his understanding of the terms “psychopathic personality” and “schizophrenic paranoid coloring” as used in the evaluation: “Well, psychopathic persona!ity[,] that is the type of outlaw type dude like I am. I. have been fighting the law all my life and the system, which you can’t win, *874 believe me. Anyway, and I am just anti-social to the everyday square John type people. Man, like yourself, you know, I just don’t click. And the schizophrenic coloring is that under due [s/c] stress or something like that, I get frustrated and I keep thinking that someone is against me or trying to, you know; otherwise, I provoke something that isn’t really there.” Brady’s self-serving and largely incoherent description of his psychiatric evaluation is no substitute for the objective and professional explanation of Brady’s mental abnormalities that would have been revealed by his psychiatric records, and thus does not support the majority’s conclusion that defendant suffered no prejudice from the trial court’s denial of his motion for discovery of Brady’s psychiatric records.
Brady’s testimony that defendant admitted to him that he had committed the three murders and one attempted murder in this case constituted significant evidence of defendant’s guilt that might have altered the outcome of defendant’s trial. Defendant was tried twice for the murders in this case. At the first trial, at which Brady did not testify, the jury was unable to reach a verdict on the charges of murder and attempted murder. Although Brady’s testimony was not the only additional evidence presented at the second trial (this case), it was the most significant because it exposed defendant’s confession to the jury. As this court has recognized, a confession often “ ‘operates as a kind of evidentiary bombshell which shatters the defense.’ ” (People v. Cahill (1993) 5 Cal.4th 478, 497 [ 20 Cal.Rptr.2d 582 , 853 P.2d 1037 ].) Unlike the majority, therefore, I cannot conclude on the record before this court that defendant suffered no prejudice from the trial court’s denial of the motion for discovery of Brady’s psychiatric records.
II
As noted at the outset, in this case the prosecution alleged one special circumstance, that of multiple murder, thus rendering defendant eligible for the death penalty. The allegation was phrased in the statutory language that “defendant has in this proceeding been convicted of more than one offense of murder in the first or second degree.” (Pen. Code, § 190.2, subd. (a)(3).) California law expressly requires a jury finding on the truth of any alleged special circumstance. (Pen. Code, § 190.4, subd. (a) [“Whenever special circumstances ... are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance.” (Italics added.)].)
When the trial court instructed the jury at the guilt phase of the trial, it refused to instruct on or provide the jury with verdict forms for this special circumstance allegation; consequently, the jury made no finding regarding *875 the truth of the allegation. The trial court saw no need for instruction or verdict forms for the special circumstance allegation, reasoning: “The jury does not. . . have to make a special finding that the defendant committed murder with special circumstances. If they convict the defendant of. . . two counts of murder, at least one of which is murder of the first degree, they’re persuaded of those beyond a reasonable doubt, then, the special circumstances have been established without any additional or further finding.”
The trial court was wrong, and the majority so holds. California law unquestionably gives a defendant in a capital case the right to a jury determination on the truth of the special circumstance itself The federal Constitution, too, through the Sixth Amendment, guarantees the accused not only a jury determination on individual factual components of a criminal charge, but also a jury determination on the ultimate question of the accused’s guilt or innocence. 4
*876 “No idea was more central to our Bill of Rights than the idea of the jury.” (Amar, Sixth Amendment First Principles (1996) 84 Geo. L.J. 641 , 681.) The *877 constitutional right to jury trial in a criminal case was intended “to prevent oppression by the Government.” (Duncan v. Louisiana (1968) 391 U.S. 145, 155 [ 20 L.Ed.2d 491, 499 , 88 S.Ct. 1444 ], fn. omitted.) As the United States Supreme Court explained in Duncan: “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions . . . reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” (Id. at p. 156 [ 20 L.Ed.2d at p. 500 ]; accord, Williams v. Florida (1970) 399 U.S. 78, 100 [ 26 L.Ed.2d 446, 460 , 90 S.Ct. 1893, 1905-1906 ] [“the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence”].) This allocation of one of the fundamental powers of organized govemment—the power of criminal condemnation—to a deliberative body drawn specially from the people for the sole purpose of exercising that power in a single criminal case, rather than to a professional class of judges, is an essential and fundamental feature of our system of government that “reflects ... ‘a profound judgment about the way in which law should be enforced and justice administered.’ ” (Sullivan v. Louisiana, supra, 508 U.S. at p. 281 [ 124 L.Ed.2d at p. 191 , 113 S.Ct. 2078, 2083 ]; see generally, Amar, op. cit. supra, 84 Geo. L.J. at pp. 677-687; Amar, The Bill of Rights as a Constitution (1991) 100 Yale L.J. 1131 , 1182-1199.)
Trial by jury as guaranteed by the Sixth Amendment to the federal Constitution encompasses more than having a jury decide whether the *878 prosecution has proven each of several elements of a criminal charge. The right to jury trial, at base, is the right to have the jury decide the ultimate question of a defendant’s guilt or innocence. (United States v. Gaudin, supra, 515 U.S. at p. _ [132 L.Ed.2d at pp. 451-452, 115 S.Ct. 2310 ].) This, then, was the historical guarantee of the Sixth Amendment: “[the] right of criminal defendants to demand that the jury decide guilt or innocence on every issue.” (United States v. Gaudin, supra, 515 U.S. at p_[ 132 L.Ed.2d at p. 452 , 115 S.Ct. 2310 ]; id. at p. _, fn. 2 [ 132 L.Ed.2d at p. 450 , 115 S.Ct. at p. 2314 ] [“the jury’s determination of ultimate guilt is indispensable” (original italics)]; accord, Sullivan v. Louisiana, supra, 508 U.S. at p. 277 [124 L.Ed.2d at pp. 187-188, 113 S.Ct. 2078 ] [The “most important element” of right to trial by jury is “the right to have the jury, rather than the judge, reach the requisite finding of ‘guilt.' ” (Italics added.)].)
As the high court has explained, “[j]uries at the time of the framing [of the federal Constitution] could not be forced to produce mere ‘factual findings,’ but were entitled to deliver a general verdict pronouncing the defendant’s guilt or innocence.” (United States v. Gaudin, supra, 515 U.S. at p._[ 132 L.Ed.2d at p. 451 , 115 S.Ct. 2310 ], citing Morgan, A Brief History of Special Verdicts and Special Interrogatories (1922) 32 Yale. L.J. 575, 591; Clement-son, Special Verdicts and Special Findings by Juries (1905); and Alschuler & Deiss, A Brief History of the Criminal Jury in the United States (1994) 61 U.Chi. L.Rev. 867, 912-913.) “[T]he jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” (United States v. Gaudin, supra,_U.S. at p. _ [ 132 L.Ed.2d at p. 452 , 115 S.Ct. 2310 ], italics added.) When a judge rather than a jury reaches the ultimate verdict of guilty, “‘the wrong entity judge[s] the defendant guilty.’” (Sullivan v. Louisiana, supra, 508 U.S. at p. 281 [ 124 L.Ed.2d at p. 190 , 113 S.Ct. 2078 ].)
The ultimate determination of guilt or innocence by a jury comprises more than the sum of the factual decisions a jury makes to reach that determination. In accord with the principle of having juries deliver general verdicts pronouncing a defendant’s guilt or innocence, courts have resisted procedures under which issues in a criminal case are presented piecemeal to a jury, leaving it to the trial court to decide the ultimate issue of guilt or innocence. (See e.g., United States v. Collamore (1st Cir. 1989) 868 F.2d 24, 25-26 ; United States v. Spock (1st Cir. 1969) 416 F.2d 165, 181 ; United States v. Ogull (S.D.N.Y. 1957) 149 F.Supp. 272, 276 ; United States v. Birdsong (11th Cir. 1993) 982 F.2d 481, 482 .) These so-called trial-splitting devices include “bifurcation” (presenting factual components of a criminal charge to different juries such that no single jury passes on the defendant’s guilt or innocence) and “special verdicts” (asking the jury to answer a series of *879 questions corresponding to the elements of the crime). (See generally, Granholm & Richards, Bifurcated Justice: How Trial-Splitting Devices Defeat the Jury’s Role (1995) 26 U.Tol.L.Rev. 505.)
Here, the trial court’s ruling, in effect, operated like a special verdict. In not submitting to the jury the issue of defendant’s “guilt” on the multiple-murder special-circumstance allegation, the trial court usurped the jury’s historic constitutional power to return a general verdict on the ultimate question of the truth or falsity of a criminal charge (here, the special circumstance allegation that rendered defendant eligible for the death penalty). The court, in effect, made the finding on the special circumstance. In short, “the wrong entity judge[d] . . . defendant guilty.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 281 [ 124 L.Ed.2d at p. 190 , 113 S.Ct. at p. 2082 ].)
Although the majority concludes that the trial court erred in not submitting the truth of the special circumstance allegation to the jury, it also concludes that the error was harmless. The majority does not consider the error- to be a “structural defect” affecting the very framework of the trial, which under Arizona v. Fulminante (1991) 499 U.S. 279, 309 [ 113 L.Ed.2d 302, 330-331 , 111 S.Ct. 1246 ], would require automatic reversal, thus dispensing with the need to evaluate prejudice. In my view, however, the error was a structural defect affecting the fundamental fairness of defendant’s trial.
In Fulminante , the United States Supreme Court distinguished two kinds of errors in criminal trials, “structural defects” and “trial errors.” The court defined a structural defect as an error “affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” (Arizona v. Fulminante, supra, 499 U.S. at p. 310 [ 113 L.Ed.2d at p. 331 ].) Such defects are reversible per se; in other words, they require automatic reversal. Mere “trial error,” on the other hand, is reversible only if its occurrence has prejudiced the defendant. (Id. at pp. 307, 310 [113 L.Ed.2d at pp. 329-330, 331-332].)
Indisputably, the violation of a criminal defendant’s right to trial by jury affects the very framework or structure of the trial itself, thus requiring automatic reversal. As the United State Supreme Court has stated: “[T]he jury guarantee [is] a ‘basic protectio[n]’ whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function. [Citation.] .... The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” (Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282 [ 124 L.Ed.2d at p. 191 , 113 S.Ct. 2078 ].) This court too has affirmed that under the California Constitution a violation of the right to jury trial is a “miscarriage of justice” that is reversible irrespective of the strength of the evidence presented at trial. (People v. Cahill, supra, 5 Cal.4th at p. 501 .)
*880 To reach its conclusion that the trial court’s decision not to submit the multiple-murder special circumstance to the jury was harmless, the majority relies on cases in which, in the majority’s words, “[t]he factual issue posed by the omitted instruction necessarily was resolved adversely to defendant under other properly given instructions.” (Maj. opn., ante, at p. 852, citing People v. Johnson (1993) 6 Cal.4th 1, 45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ] and People v. Sedeno (1974) 10 Cal.3d 703, 721 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ].) This is not simply a case of instructional error, however. 5 Not only did the trial court fail to instruct the jury on the multiple-murder special circumstance, it refused to submit the special circumstance allegation to the jury for decision. “[T]o hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be— . . . violate[s] the jury-trial guarantee.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 279 [ 124 L.Ed.2d at p. 189 , 113 S.Ct. 2078 ].) This denial of defendant’s right to trial by jury was, for reasons set forth above, “structural error,” and thus reversible per se.
Conclusion
I would reverse the special circumstance finding and the judgment of death.
Brady and a friend, Billy Ray Hamilton, were offered $75,000 by one Clarence Allen to murder several persons at a market in Fresno, California. Both agreed to do so, but ultimately it was Hamilton who committed the murders. Brady testified against Allen, who was convicted and sentenced to death. (People v. Allen (1986) 42 Cal.3d 1222 [ 232 Cal.Rptr. 849 , 729 P.2d 115 ]; see also People v. Hamilton (1988) 46 Cal.3d 123 [ 249 Cal.Rptr. 320 , 756 P.2d 1348 ] [affirming Hamilton’s conviction and death sentence].)
The majority finds fault with the trial court’s comment that “so far as [it was] aware,” witness Brady’s psychiatric records included in his prison file were privileged material. The majority points out that a privilege may be asserted only by the holder of the privilege, not the trial court. (Maj. opn., ante, at p. 842.) The trial court’s cursory remark, however, does not *872 appear to have been intended as a definitive resolution of the question of privilege. Instead, it seems to have been merely an attempt to express a tentative view that if a privilege were to be asserted, the court would be required to sustain it. The court specifically invited defendant to furnish legal points and authorities to the contrary, but, as noted in the text above, defendant chose not to do so.
The majority assumes that the question of prejudice can be adequately decided on the record before this court. As set forth earlier, in my view the trial court did not abuse its discretion in denying defendant’s discovery motion. But were I to conclude that the denial *873 was error, I would, unlike the majority, not reach the issue of prejudice. Instead, I would vacate the judgment and remand with directions for the trial court to conduct a hearing in chambers to determine whether any information from Brady’s psychiatric records should have been provided to the defense and whether defendant suffered any prejudice from the denial of discovery. (See Pennsylvania v. Ritchie, supra, 480 U.S. 39, 61 [ 94 L.Ed.2d 40, 59-60 , 107 S.Ct. 989 ]; People v. Memro (1985) 38 Cal.3d 658, 705-710 [ 214 Cal.Rptr. 832 , 700 P.2d 446 ] (conc. and dis. opn. of Grodin, J.).) If after reviewing the records in chambers, the trial court were to conclude that defendant would not have been entitled to discovery during the trial of this case or that any information he should have received could not have affected the outcome of that trial, then the court would have to reinstate the judgment. If the trial court were to reach the opposite conclusion, there would be no reinstatement of the judgment; defendant could, of course, be retried on the same charges.
The majority asserts that the trial court’s refusal to submit the multiple-murder special-circumstance allegation to the jury in this case did not violate defendant’s constitutional right to a jury trial, apparently reasoning that the Sixth Amendment of the federal Constitution does not apply to the special circumstance findings that must be made under California’s death penalty law. (Maj. opn., ante, at p. 851, fn. 9.) The majority is wrong: Denial of a defendant’s right to have a jury determine the truth of a special circumstance allegation does violate the Sixth Amendment.
As I recently explained in People v. Osband (1996) 13 Cal.4th 622, 741-742 [ 55 Cal.Rptr.2d 26 , 919 P.2d 640 ] (conc. and dis. opn. of Kennard, J.): “Generally, the definition of crimes and their elements is a legislative prerogative. (McMillan v. Pennsylvania (1986) 477 U.S. 79 [ 91 L.Ed.2d 67 , 106 S.Ct. 2411 ].) ... [1 If the legislative intent was that the special circumstances in California’s capital scheme be treated as the equivalent of or integral to criminal offenses, then the Sixth Amendment of the federal Constitution comes into play, giving defendants the right to have a jury decide the truth or falsity of such allegations. . . . If, on the other hand, the legislative intent was that the special circumstances be treated simply as sentencing factors, the Sixth Amendment would not apply, for ‘there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.’ (McMillan v. Pennsylvania, supra, [477 U.S.] at p. 93 [ 91 L.Ed.2d at p. 81 ]; accord, People v. Bacigalupo (1991) 1 Cal.4th 103, 147 [ 2 Cal.Rptr.2d 335 , 820 P.2d 559 ] [no Sixth Amendment right to jury trial at the penalty phase, and thus no right to a unanimous jury finding on aggravating and mitigating factors].)”
I concluded in Osband that because California’s capital scheme treats a special circumstance as the equivalent of or integral to a criminal offense, the Sixth Amendment requires that a jury determine the existence of any special circumstance allegations. (People v. Osband, supra, 13 Cal.4th at p. 743 (conc. and dis. opn. of Kennard, J.).) In concluding to the contrary, the majority relies on these decisions: Clemons v. Mississippi (1990) 494 U.S. 738, 745 [ 108 L.Ed.2d 725, 735-736 , 110 S.Ct. 1441 ], People v. Johnson (1993) 6 Cal.4th 1, 45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ]; People v. Cummings (1993) 4 Cal.4th 1233, 1313 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ]; People v. Odle (1988) 45 Cal.3d 386 , 411 and footnote 11 [ 247 Cal.Rptr. 137 , 754 P.2d 184 ]; and People v. Moreno (1991) 228 Cal.App.3d 564, 573 [ 279 Cal.Rptr. 140 ]. The reliance is misplaced.
In Clemons v. Mississippi, supra, 494 U.S. at page 745 [ 108 L.Ed.2d at page 736 ], the high court observed: “Any argument that the Constitution requires that a jury impose the sentence *876 of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.” Thus, under Clemons , neither the Sixth Amendment nor any other provision of the federal Constitution requires that a state structure its death penalty law so that a jury rather than a judge performs the “narrowing” or the “selection” functions that are both necessary to the imposition of the death penalty. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 465 [ 24 Cal.Rptr.2d 808 , 862 P.2d 808 ] [explaining that “narrowing” pertains to the legislative definition that places a defendant within the class of persons eligible for the death penalty, whereas “selection” pertains to the decision whether to impose death or life imprisonment without parole].) Therefore, under Clemons , a state can, if it so chooses, create a statutory scheme whereby, consistent with the Sixth Amendment, a judge rather than a jury performs the narrowing and selection functions as part of sentencing. But, as I explained in People v. Osband, supra, 13 Cal.4th at page 742 (conc. and dis. opn. of Kennard, J.), California has not done so.
As to the majority’s reliance on People v. Johnson, supra, 6 Cal.4th 1, 45 , and People v. Cummings, supra, 4 Cal.4th 1233, 1313 , both decisions cite, without analysis, People v. Odle, supra, 45 Cal.3d 386, 411-412 , for the proposition that there is no constitutional right to jury trial on the issue of special circumstances. Odle , in a discussion unnecessary to any holding in the case and therefore dictum, stated that there is no Sixth Amendment right to have a jury determine the existence of the elements of a special circumstance, citing in support Cabana v. Bullock (1986) 474 U.S. 376, 386 [ 88 L.Ed.2d 704, 716-717 , 106 S.Ct. 689 ]. But Bullock did not at all address the issue of special circumstance allegations under California’s death penalty law, nor did it provide any support for Odle’s assertion. On the subject of the Sixth Amendment right to jury trial, the United States Supreme Court in Bullock merely observed, in passing, that in Spaziano v. Florida (1984) 468 U.S. 447 [ 82 L.Ed.2d 340 , 104 S.Ct. 3154 ] the court had “specifically rejected the argument that the Sixth Amendment or any other constitutional provision provides a defendant with the right to have a jury consider the appropriateness of a capital sentence.” (Cabana v. Bullock, supra, 474 U.S. at pp. 385-386 [ 88 L.Ed.2d at p. 715 , 106 S.Ct. 689 ].) Spaziano lends no support to this court’s dictum in Odie that there is no Sixth Amendment right to have a jury determine the existence of a special circumstance alleged under California’s death penalty law. At issue in Spaziano was a claim by a capital defendant sentenced under Florida law (which has a judge make the ultimate sentencing decision) that “the capital sentencing decision is one that, in all cases, should be made by a jury.” (Spaziano v. Florida, supra, 468 U.S. at p. 458 [ 82 L.Ed.2d at p. 351 , 104 S.Ct. 3154 ].) The high court rejected that contention, holding that “the Sixth Amendment does not require jury sentencing.” (Id. at p. 464 [ 82 L.Ed.2d at p. 355 ].) As I explained in People v. Osband, supra, 13 Cal.4th at page 742 (conc. and dis. opn. of Kennard, J.), however, under California’s death penalty law a determination on the truth of a special circumstance allegation is not a sentencing decision.
People v. Moreno, supra, 228 Cal.App.3d 564, 573 , too, is of no assistance to the majority’s conclusion. In Moreno , the Court of Appeal simply asserted without analysis that there is no Sixth Amendment right to have a jury determine the truth of special circumstance allegations, citing in support Walton v. Arizona (1990) 497 U.S. 639 [ 111 L.Ed.2d 511 , 110 S.Ct. 3047 ]. Walton involved Arizona’s death penalty law, under which findings on aggravating factors (the “narrowing” aspect of that state’s capital scheme) were to be made at a separate sentencing hearing. (Walton v. Arizona, supra, 497 U.S. at p. 645 [111 L.Ed.2d at pp. 522-523, 110 S.Ct. 3047 ].) The high court rejected the assertion that the Sixth Amendment entitled an Arizona capital defendant to have a jury rather than a judge make those findings. (Walton, supra, at p. 647 [ 111 L.Ed.2d at p. 524 ].) But in California, the determination of the existence of a special circumstance allegation (the “narrowing” aspect of our capital scheme) *877 is made at the guilt phase of trial, together with the determination of the defendant’s guilt or innocence on the murder charge, not at a separate sentencing hearing. Therefore, a California capital defendant is entitled under the Sixth Amendment to have a jury decide the truth of a special circumstance allegation.
Moreover, even if the majority were correct that the Sixth Amendment does not entitle a California capital defendant to have a jury decide the existence of a special circumstance, removing a special circumstance allegation from the jury’s consideration violates a capital defendant’s statutory right to jury trial under California law, and thereby denies the defendant due process of law under the Fourteenth Amendment to the federal Constitution, as the majority concedes. (Maj. opn., ante, at p. 850.) Denial of a criminal defendant’s right to jury trial in violation of the federal Constitution is “structural error” that is reversible per se, whether the federal constitutional right that is violated is the Sixth Amendment right to jury trial or the Fourteenth Amendment right to due process of law.
Finally, even if removing a special circumstance allegation from the jury’s consideration would not violate any federal constitutional right, constituting merely the denial of a statutory right to jury trial, it would still be a “structural defect” establishing a “miscarriage of justice” under our state law harmless error standard (Cal. Const., art. VI, § 13) and therefore reversible per se. (See People v. Cahill, supra, 5 Cal.4th 478, 501-502 .)
In this regard, this case is distinguishable from People v. Osband, supra, 13 Cal.4th 622, 746-747 (conc. and dis. opn. of Kennard, J.), in which I concluded that the instructional error involving a special circumstance allegation was harmless. There, the trial court submitted to the jury the truth or falsity of the special circumstance alleged in that case, but inaccurately instructed the jury on the elements of that special circumstance. The error, therefore, was “instructional” rather than “structural.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9849128. Public record. Not legal advice.