holding that the scope of cross-examination did not extend to any bad acts committed by the defendant during his life where defendant presented evidence of adverse circumstances that he experienced in his early childhood rather than evidence of his general good character
How later courts described this case
- holding that the scope of cross-examination did not extend to any bad acts committed by the defendant during his life where defendant presented evidence of adverse circumstances that he experienced in his early childhood rather than evidence of his general good character
- conc. and dis. opn. of Mosk, J.
- absent defense presentation of 19 good character evidence the prosecution may not introduce evidence of prior misconduct
Written by the judges who cited it.
The opinion
MOSK, J.,
Concurring and Dissenting.—I concur in the judgment as to guilt and death-eligibility. I agree with the majority that there was no reversible error bearing on those issues.
I dissent, however, from the judgment as to penalty. It is clear that the trial judge, in acting on defendant’s application to modify pursuant to Penal Code section 190.4, subdivision (e), erred in reading and considering a probation report. (See, e.g., People v. Lewis, ante, 262, 287 [ 266 Cal.Rptr. 834 , 786 P.2d 892 ].) It is also clear that the error was prejudicial. The information contained in the report was particularly damning in that it referred to a number of incidents in defendant’s past that could reasonably be interpreted as indicating his inability to benefit from punishment and confinement.
In my view, the judgment of death must be vacated. I would not, however, order yet another hearing and thus give the trial judge a second opportunity to comply with the law. He now has sensitive information about defendant. Perhaps he could put it out of his mind and reflect only on the evidence presented to the jury. In an ordinary sentencing matter, the judge can be expected to be properly selective. But in the penalty phase of a capital case, in which the only issue is life or death, it may be far more difficult for the judge to disregard facts that are highly relevant but not properly before him.
Under these circumstances, I would exercise our authority under Penal Code sections 1260 and 1181, subdivision 7 (see, e.g., People v. Adcox (1988) 47 Cal.3d 207, 277 [ 253 Cal.Rptr. 55 , 763 P.2d 906 ] (conc, and dis. opn. of Mosk, J.); People v. Lucero (1988) 44 Cal.3d 1006, 1034-1036 [ 245 Cal.Rptr. 185 , 750 P.2d 1342 ] (conc, and dis. opn. of Mosk, J.)) and vacate *1203 the judgment as to penalty and remand the cause to the trial court with directions to impose a sentence of life imprisonment without possibility of parole.
Appellant’s petition for a rehearing was denied August 28, 1990.