# Petition — Steelman v. All Continent Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1938
- **Citation:** 305 U.S. 665

## Text

80-6155

IN THE

RECEIVED

FEB 5 1981

OF THE CLERK
ore FC

SUPREME COURT OF THE UNITED STATES

October Term, 1980

EARL LLOYD JACKSON,
Petitioner,
vs.
STATE OF CALIFORNIA,

Respondent.

ee eee ee ee

NO.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPPEME COURT OF CALIFORNIA

JOSEPH SHEMARIA

Attorney at Law

9000 Sunset Boulevard

Suite 1100

Los Angeles, California 90069
(213) 278-2660; 878-2822

Attorney for Petitioner
EARL LLOYD JACKSON

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31
32

' TOPECAL INDEX

TABLE OF AUTHORITIES
OPINIONS BELOW
JURISDICTION

QUESTIONS PRESENTED
CONSTITUTIONAL PROVISIONS
STATUTORY PROVISIONS

A. The 1977 Legislative Enactments Which Are

Applicable to Petitioner's Case

B. The 1977 Initiative Which Subsequently

Changed the Death Penalty in an Effort

to Cure Constitutional Defects.

STATEMENT OF THE CASE
STATEMENT OF THE FACTS
REASONS FOR GRANTING THIS WRIT
I. CALIFORNIA'S 1977 CAPITAL PUNISHMENT LAW
VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENT
PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENT.
A. THE CALIFORNIA LAW FAILS TO ESTABLISH
THE CONSTITUTIONALLY REQUIRED GUIDE-
LINES NECESSARY TO PREVENT THE IMPOS]TION
OF AN ARBITRARY AND CAPRICIOUS SENTENCE
OF DEATH.

1. The Requirement that the Aggravating

Factors Outweigh the Mitigating

Factors.

2. The Requirement that Aggravating

Factors Be Found Beyond a Reasonable

Doubt.

ll

14

3. The Requirement of a Unanimous

Verdict in Finding Aggravating

Factors. 16
4. The Requirement of Written Findings. 17

B. THE CALIFORNIA LAW FAILS TO PROVIDE FOR
PROPORTIONALITY REVIEW. 18

II. PETITIONER, WHO HAS BEEN SENTENCED TO DEATH,

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32

WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT

TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

CONCLUSION.

afi 2.336 8 6 ae e 8 YS? aise ae ote *& & 2

These changes in the death penalty were clearly
designed to remedy constitutional defects in the 1977 death
penalty law. In the voter's pamphlet, the proponents of
Proposition 7 who placed the new statute on the ballot stated:

"The opposition can't understand why we

included the aggravating vs. mitigating cir-

cumstances provision in Proposition 7. Well,

{[any] first-year law student could have told

them this provision is required by the U.S.

Supreme Court. The old law does not meet this

requirement and might be declared unconstitutional,

leaving us with no death penalty at all!" (Calif.

Voters Pamp., Gen.Elec. (Nov.7, 1978), rebuttal
to argument against Prop. 7, p35)

The failure of the 1977 law to require this balancing
process means that the statute does not properly guide the
jury in their deliberations concerning who shall live and who
shall die. Death may even be imposed where the mitigating
circumstances far outweigh the aggravating circumstances.
California's 1977 death penalty law has not channeled jury
discretion in an effort to eliminate arbitrary and capricious
death sentences. The jury in Petitioner's case received no

greater guidance than did the jury in Furman v. Georgia, 408 U.S.

238 (1972) and therefore California's law is unconstitutional.

2. The Requirement that Aggravating Factors

Be Found Beyond a Reasonable Doubt.

The California death penalty statute does not require
the jury to find bey amd a reasonable doubt the existence of at
least one statutory aggravating factor. It further does not
require the jury to utilize the reasonable doubt standard in any
way during the penalty trial.

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This clearly conflicts with this Court's earlier

cases. In the case of In re Winship, 397 U.S. 358 (1970), it

was stated:

Less there remain any doubt about the
constitutional stature of the reasonable-doubt
standerd, we explicitly hold that the Due
Process Clause protects the accused against
conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the

crime with which he is charged. (Id., at 364)

The Georgia death penalty statute mandates that be fore
a death sentence may be returned, the sentencing authority must
find that at least one of ten statutorily-enumerated aggravating
factors exists and must "designate in writing...the aggravating

circumstance or circumstances which it found beyond a reasonable

doubt." (Gregg, supra, 428 U.S. at 166, fn.9) (emphasis added)
In Texas, the procedure requires, at the penalty phase,
\special findings in regard to statutorily specified aggravating

factors. The sentencing authority is required to answer certain

the probability of his future dangerousness, and the reasonable-
ness of his response to any provocation by the deceased. (Jurek,
supra, 428 U.S. at p.269) Only if the sentencing authority finds

beyond a reasonable doubt against the defendant on all relevant

factors shall a death sentence be imposed.

In California, in contrast to the Texas and Georgia
procedures, there is no requirement in the penalty trial that the
jury find any statutory aggravating factor beyond a reasonable
doubt. Indeed, the jury is not even told that in order to return
a death verdict, they must find beyond a reasonable doubt that
death is the appropriate verdict. Such inadequacjes in the
California law must render the law unconstitutiogal, not only

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questions concerning the deliberateness of the defendant's actions,

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under the Eighth Amendment, but also under wes 3 Due Process Clause

of the Fifth Amendment.

3. The Requirement of a Unanimous Verdict

in Finding Aggravating Factors.

Petitioner next contends that the California death penalty

statute as applied in the instant case violates the Due Process

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Clause of the Constitution and constitutes cruel and unusual

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punishment because there is no requirement for a unanimous finding

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on one or more of the aggravating circumstances nor is there a

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requirement for a unanimous finding that none of the mitigating

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factors have been proven. In Proffitt, the Florida statute

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withstood constitutional attack, on at least one ground, due to

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the fact that the Florida statute provided that the jury determine

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whether the mitigating circumstances which existed outweighed the

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aggravating circumstances found to exist and required the jury's

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verdict to be determined by a majority vote. (428 U.S., at 248-

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249). The Texas statute required that the jury find that the

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state has proven beyond a reasonable doubt the exjstence of all

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three aforementioned questions before the death penalty could be

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imposed. "If the jury finds that the answer to any question is

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no, then a sentence of life imprisonment results," (Jurek v.

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Texas, supra, at 269)

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Petitioner submits that the United States Supreme Court

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has impliedly condemned the procedures under which a death verdict

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is returned under California law inasmuch as there is absolutely

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no guidance for the jury on how to apply the “mitigating” and

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“aggravating"circumstances. As the Supreme Court noted in

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Jurek: ;

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Thus, in essence, the Texas statute requires

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that the jury find the existence of a statutory

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‘aggravating circumstance before the death penalty

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may be imposed. So far as consideration of ag-

gravating circumstances is concerned, therefore,

the principle difference between Texas and the

other two States is that the death penalty is an

available sentencing option--even potentially--

for a smaller class of murderers in Texas.

Otherwise the statutes are similar. Each
requires the sentencing authority to focus
on the particularized nature of the crime.

Jurek v. Texas, supra, at 270-271.

Petitioner submits that the lack of a requirement of a
unanimous finding on one or more of the aggravating circumstances
combined with the lack of any requirement of a unanimous finding,
or even a majority finding for that matter, of any"mitigating”
factors renders the California death penalty statute highly
susceptible to arbitrary and capricious application in violation

of Furman.

4. The Requirement of Written Findings.

Petitioner next contends that the California statute is
constitutionally defective under the trilogy of United States
Supreme Court cases in that there is no requifement that the
jury return written findings as to what factors of aggravation
they found to be true and/or what factors of mitigation they found
not to be true in arriving at their verdict. In Gregg, the
Supreme Court noted that “Where the sentencing authority is
required to specify the factors it relied upon in reaching its
decision, the further safeguard of meaningful appellate review is
available to insure that death sentences are not imposed
capriciously or in a freakish manner." (428 U.S., at 195). Quite
clearly, the Georgia death penalty statute requires "specific

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jury findings as to the circumstances of the crime or the
character of the defendant" prior to imposition of the death
penalty. (428 U.S., at 198)

In Florida, the sentencing authority is a judge and the
jury, through its majority vote, only renders an advisory verdict.

Shea “eaten at 248-249) As noted by this Court, the “trial

judge is also directed to weigh the statutory aggravating and
mitigating circumstances when he determines the sentence to be
imposed on a defendant. The statute requires that if the trial
court imposes a sentence of death, ‘it shall set forth in writing
its findings upon which the sentence of death is based as to the
facts: (a) [that sufficient [statutory]] aggravating circumstances
exist...and (b) [t]hat there are insufficient [statutory]
mitigating circumstances...to outweigh the aggravating cir-

cumstances.'" (Proffitt v. Florida, supra, at 250)

Since California fails to provide a similar requirement
in its death penalty statute, Petitioner urges that the statute

be declared unconstitutional.

B. THE CALIFORNIA LAW FAILS TO PROVIDE FOR

PROPORTIONALITY REVIEW.

The California death penalty statute is also uncon-

titutional because of its failure to provide for proportionality
eview. "“Proportionality review" provides assurance that the
mposition of the death penalty in any given case is not dis-
roportionate to sentences handed down in other cases involving

imilar circumstances. See, Proffitt v. Florida, 428 U.S. 242,

50-251 (1976). In striking down the death penalty statutes in
rth Carolina and Louisiana, the Court noted that neither state's
aw provided for a meaningful appellate review that would limit

e arbitrary and capricious imposition of death. Woodson v.

orth Carolina, 428 U.S. 280, 302-303 (1976); Roberts v. Louisiana,

o}) § .
appears that counsel presented to the penalty jury a.

well-reasoned argument in defendant's béhalf .. . and).

generally appealed to the mercy of the Sury ina :

.

persuasive manner. It further appears ... that counsel beg:

- « « decided against [calling defendant to testify] . 7 ="

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after a careful consideration as to the scope of eas

cross-examination .... . Finally, counsel subjected each, Ha

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to cross-examination. In view of the Sl of

witness presented by the prosecution at the penalty phas sis

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circumstances we cannot conclude that representation

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afforded defendant at the penalty prasttiercein resvlted | J

a denial of his right to the effective ‘atd of counsel ;
oe ame

see also Peopl

“4

that proceeding.” (PF. 192, italics adi
v. Hill, supra, 70 Cal.2d 678, 690-691 ° establish
ba Oh } ity whieh,” E |
establish the.
4 bs

inadequacy of counsel, defendant must
7
witnesses counsel failed to call and m

materiality of their testimony] .)

25

The present case is indistinguishable from
Durham. As in Durham, defendant herein has pointed to no
vitinaéee who might have offered mitigating testimony.
Justice Mosk's dissenting opinion suggests that defense
counsel should have called defendant's grandmother, Mattie
Jackson, to the witness stand, and that he was incompetent
in failing to do so. The record, however, indicates that
Mrs. Jackson was nearly 90 years old and, in defense
counsel's opinion, was “senile.” Counsel, realizing that
he had found no effective witnesses to appear on
defendant's behalf at the penalty phase, carefully
explored the possibility of calling Mrs. Jackson but,
after weighing the pros and cons, ultimately decidea
against dc .ng so. His decision, literally and inherently
teeming with tactical considerations, is one which any
reasonable, competent, and diligent counsel might have
‘made. Under the circumstances of this case, that decision
required a careful balancing by counsel of numerous
factors, including (1) the ability of the witness to
express herself in coherent fashion, (2) the content of
her testimony, and (4) the probable effect and impact of |
her testimony upon the jury. Counsel might very well have
determined that Mrs. Jackson, »y reason of advanced age
and demonstrated inability to communicate in a rational

manner (and her unshaken belief that defendant was

26

innocent despite the overwhelming case against him) would
not assist defendant at the penalty phase, and that the
jurors indeed might react negatively to her testimony.
With due respect to our dissenting colleagues, under the
Durham rationale "[I]n view of the totality of
circumstances we: cannot conclude that the representation
afforded defendant at the penalty phase herein resulted in
a denial of his right to the effective aid of counsel in
that proceeding.” (P. 192.)

In addition, as in Durham, trial counsel herein
presented to the penalty jury a reasonable closing
argument based primarily upon a theme which stressed the
following factors: defendant's age (he was 19 years old
when he committed the offenses), his cooperation with the
police, the value of all human life, the responsibility of
our capitalistic society for "creating" persons such as
defendant, and the need for the exercise of mercy in order
to alleviate both social and racial tensions.

Furthermore, as in Durham, trial counsel] in
advancing his client's interests at the penalty phase,
took reasonable additional measures such as
cross-examination of prosecution witnesses, objection to
prosecution evidence and proposed instructions, and
submission of favorable "special circumstances"

instructions. Finally, following the jury's verdict,

27

counsel continued his defense efforts, filing motions for

new trial, for arrest of judgment, and for modification of
verdict, based on a wide variety of grounds.

Trial counsel's declaration on file herein
discloses that he has had 13 years prior experience in the
practice of criminal law, including murder trial
participations, and that he frequently consulted with
judges and other lawyers regarding the trial of a capital
case and took educational courses on that subject. As
recently expressed, “Defendants have an arsenal of weapons
available to them before and during trial for a meaningful
defense. ([Citation.] Mental straitjackets should not be
placed on thoughtful defense counsel who wish to
selectively choose which weapon is best for a defendant or
which type of advocacy .. . is best designed to reach
what they believe is a satisfactory result for their
client." (People v. Espinoza (1979) 99 Cal.App.3d 44, 48.)

Defendant's final challenge to his trial
counsel's competence is based on counsel's failure to
present to the jury as a mitigating circumstance the fact
(if indeed it was a fact) that defendant had consumed some
marijuana on the day of the Ott burglary/murder. (See
former § 190.3, subds. (d), (h), (k).) As we have
' previously noted, neither the record on appeal nor the

habeas corpus petition filed by defendant herein contains

28

sufficient factual support for this theory... Moreover, as

indicated above, defendant has failed to establish
affirmatively that his counsel's omission “cannot be
explained on the basis of any knowledgeable choice of
tactics." (People v. Floyd, supra, l Cal.3d 694, 709.)
Trial counsel's declaration discloses that, as in Durham,
he determined to withhold from the jurors any defense or
theory of mitigation based on voluntary consumption of
marijuana, because such a defense would have required
defendant to testify and to face cross-examination with
probable damaging consequences. (According to counsel, in
his declaration, the prosecution possessed rebuttal
evidence disclosing "vicious attacks" by defendant upon
other persons.) Counsel further hoped that the jury would
decline to impose the death penalty in view of its
"limited knowledge" of defendant and his particular role
in the offenses.

Based on the totality of circumstances, we
conclude that counsel's representation of defendant at the
penalty phase did not result in a denial of defendant's
right to the effective aid of counsel. We further
conclude that defendant's petit/on for habeas corpus must
be denied for failing to allege sufficient additional
facts which either would demonstrate counsel's
incompetence or warrant an evidentiary hearing in the

matter.

29

3. Admissibility of Defendant's Statement to Police
Officers

At trial the People were permitted, over
defendant's objection, to introduce a tape-recorded
Statement given by defendant to police officers during a
custodial interrogation. In the statement, defendant
admitted his complicity in the Curtis and Ott murders.
Defendant contends that the statement was inadmissible
because (1) the officers represented to defendant that the
statement would not be used for court purposes; (2) the
officers promised defendant leniency in order to induce
him to confess; and (3) the officers continued their
interrogation after defendant had invoked his right to
remain silent. None of these contentions has merit.

a.) Alleged Deceit. The tape-recorded statement

contains some preliminary discussion between Officers
Bohnlein and Kavenaugh regarding the future use of the
statement. Contrary to defendant's present assertion,
however, the record fails to suggest any deception
whatever by these officers. Thus, according to the
record, after the officers had recited the date and time
of the interrogation, the following conversation ensued:
“BOHNLEIN: Are you gonna use that?

KAVENAUGH: Yeah, that's all.

30

as

BOHNLEIN: Then are we gonna use it from, for

court purposes?

KAVENAUGH: I don't know.

BOHNLEIN: Then we just...

KAVENAUGH: Just so we don't forget anything.

BOHNLEIN: Do you mind if these statements are

taped?

JACKSON: Uh, no."

Officer Kavenaugh testified regarding the
foregoing conversation in the course of a pretrial hearing
conducted for the purpose of establishing the
voluntariness of defendant's statement. According to
Kavenaugh, the interrogating officers frequently use a
tape recorder to assure that none of the contents of an
interrogation is lost or forgotten. The discussion
recited above related to "whether we were going to use the
tape for court, or whether we were going to use it to
refresh our memories when we dictate our reports." The
quoted excerpt indicates that the officers discussed
possible uses of the recording. They made no statement or
assurance to the effect that the recording would not be
used for court purposes.

We think it significant that, although defendant
himself testified at the pretrial hearing regarding the

circumstances Surrounding the recording of his statement,

31

he did not assert that he was deceived or misled regarding
the court use thereof. Indeed, prior to the conversation
at issue, the officers had carefully advised defendant,
among other things, that anything he told them "could be
used against him in court.”

The present case, therefore, is clearly
distinguishable from People v. Braeseke (1979) 25 Cal.3d
691, 702-703, wherein the officers elicited defendant's
confession after apparently acceding to defendant's
request for an “off the record" interview. Here, the
record affords no basis whatever to support defendant's
present contention that the officers made "false and
misleading statements" regarding the ultimate use of
defendant's statement. Nor does the record disclose any
“clever softening-up" conversations of the type which we
condemned in People v. Honeycutt (1977) 20 Cal.3d 150,
160. We conclude, accordingly, that defendant's statement
was not rendered either involuntary or inadmissible by
reason of the interrogating officers' brief reference to
the possible future uses of that statement.

b.) Alleged Promise of Leniency. The transcript

ot defendant's statement discloses that at one point
during the interrogation, following defendant's assertion
that he “didn't do it" (referring to the burglary and

murder of Mrs. Curtis), Officer Kavenaugh stated "If you

32

did, you are going to feel better if you tell us." Later

in the interrogation, Officer Wren asked defendant if he
could point out the house where some of the stolen
property was taken and Officer Collette stated "We
wouldn't let anybody see you. You are cooperating with
us. You are helping yourself and you are helping us to
get this . . . cleared up. If we take you out there at
night, hide you so nobody could see, you could point it
out and get all the stuff back that was taken out of the
place."

Defendant contends that the foregoing remarks
constituted improper promises of leniency or other
benefits which rendered his statement involuntary. (See,
e.g., People v. Jiminez (1978) 21 Cal.3d 595, 611; People
v. MeClary (1977) 20 Cal.3d 218, 228-229.) We do not
agree.

As we explained in McClary, “In Hill [People v.
Hill (1967) 66 Cal.2d 536), we observed a line between
mere police exhortation urging the suspect to talk to
them, on the one hand, and express or implied offers of
leniency, on the other; we explained that the distinction
‘does not depend upon the bare language of inducement but
rather upon the nature of the benefit to be derived by a
defendant if he speaks the truth, as represented by the

police.' (P. 549.) We noted that ‘When the benefit

33

Pointed out by the police to a suspect is merely that

which flows naturally from a truthful and honest course of
conduct,' the subsequent statement will not be considered
involuntarily made. (Ibid.) On the other hand, 'if .. °
the defendant is given to understand that he might
reasonably expect benefits in the nature of more lenient
treatment at the hands of the police, prosecution or court
in consideration of making a statement, even a truthful
one, such motivation is deemed to render the statement
involuntary and inadmissible. The offer Or promise of
Such benefit need not be expressed, but may be implied
from equivocal language not otherwise made clear.
[Citations,.]' (Ibid.; see also People v. Nelson (1964)
224 Cal.App.2d 238, 250-251 (36 Cal.Rptr. 385}).)" (20
Cal.3d at p,. 228.)

In the present case, it cannot reasonably be said
that Officer Kavenaugh's statement that defendant would
“feel better" if he confessed constituted any promise of
benefit other than the Psychological benefit which "flows
naturally from a truthful and honest course of conduct"

(Hill, supra, at P- 349). It is also noteworthy that

defendant himself expressly acknowledged at the conclusion
of his statement that no tangible or official benefits
were promised him.

Similarly, Officer Collette's statement that

34

defendant would be helping himself by cooperating with the
officers was not made to induce any statement or
confession, but occurred in the context of a request that
defendant escort the officers to the location of the
stolen property. Significantly, this request was made
after defendant had already admitted his complicity in the
Ott burglary and murder.

Furthermore, our previous holdings support the
conclusion that the foregoing remark would not have
constituted an improper promise or inducement even had it
been made for the purpose of eliciting a statement. As we
noted in People v. Ditson (1962) 57 Cal.2d 415, 433, "we
find no suggestion of threats or promises. we do find

searching questions and exhortations to help himself by

revealing the acts of others. But absent something other
than mere questions, or exhortations to tell the truth or

clear his conscience or help himself by revealing facts

. « « » there appears to be nothing on the face of the
record which would support a finding of overreaching or
coercion." (P. 433, italics added; accord, People v.
Hill, supra, 66 Cal.2d 536, 548-549 [officers urged
defendant to “help himself"].) In similar fashion, we
conclude that the officers' remarks to defendant did not
render his statement involuntary.

c.) Alleged Miranda Violation. Defendant next

35

argues that the officers improperly interrogated him
despite the invocation of his constitutional right to
remain silent and to consult an attorney. The record
discloses that, prior to interrogating defendant, Officer
Bohnlein carefully explained to defendant his various
rights under Miranda v. Arizona (1966) 384 U.S. 436, and
then inquired "Having those rights in mind, do you want to
talk to us regarding these allegations"? According to the
transcript of the tape recording, defendant replied "No.
I want to talk to--yes-- (Inaudible)." Thereupon, the
interrogation proceeded without further objection by
defendant.

Defendant argues that his response to Officer
Bohnlein was an assertion of his right to remain silent,
thereby rendering all subsequent statements inadmissible.
It is well settled that once a suspect indicates his
refusal to waive his constitutional rights, all further
interrogation must cease. (People v. Braeseke, supra, 25
Cal.3d 691, 702; People v. Pettingill (1978) 21 Cal.3d
231, 237-241; People v. McClary, supra, 20 Cal.3d 218,
226.) Further, the record must contain evidence from
which the trial court could have found beyond a reasonable
doubt that the statement at issue was the product of a
knowing and intelligent waiver of defendant's Miranda

rights. (People v. Braeseke, supra, p. 701; see People v.

36

Jiminez, supra, 21 Cal.3d 595, 608.) On the other hand,
as a reviewing court, we must examine the uncontradicted
facts in the record to determine independently whether the
trial court's finding of intelligent waiver was properly
made. As to conflicting testimony, we must accept that
version of events which is most favorable to the People,
to the extent that it is supported by the record. (See
People v. Jiminez, supra, at p. 609.)

Defendant unsuccessfully litigated the question
of his waiver of constitutional rights at two separate
stages of these proceedings. First, at a pretrial hearing
on defendant's motion to exclude his statement (Evid.
Code, § 402), the interrogating officers testified that
defendant had responded affirmatively to their request to
talk with him. According to Officer Kavenaugh, “he wanted
to talk to us, it [defendant's response] was not a 'no.'"
Further, Kavenaugh testified that defendant said nothing
to indicate he wanted to talk to an attorney. Officer
Bohnlein confirmed that defendant never requested to talk
to an attorney. Defendant was called to testify on the
matter, and he claimed that he told the officers that "I
wanted to talk to a lawyer," and that Officer Kavenaugh
agreed to obtain a lawyer for defendant.

To assist in resolving the foregoing conflicting

testimony, a police sound-laboratory expert examined the

37

tape recording and testified that in his opinion the

transcription was accurate and that defendant's response
had been “No, I want to talk to--yes,” without more than a4
second's pause between the word "yes" and the rest of the
sentence. The witness concluded that defendant's response
could not have included a request for an attorney because
“There is not enough time betwen the words ‘to' and 'yes.*”

Based upon its evaluation of all of the foregoing
testimony, the trial court denied defendant's motion,
stating that "I am satisfied beyond a reasonable doubt and
the mechanics of the production of this tape eliminated
any possibility of, after the word ‘to,’ the defendant
saying lawyer, attorney, P.D. OF anything else."

Thereafter, at trial, defendant renewed his
objection to the tape recording, and additional testimony
was.elicited outside the presence of the jury. officer
Bohnlein stated that when defendant was asked if he wished
to talk to the officers, he initially stated “No,” but
then agreed to discuss the matter. At no time, according
to Bohnlein, did defendant ask to talk to an attorney.
Defendant, on the other hand, testified that his response
to Bohnlein's inquiry was “No, I want to talk to a--to
a--to a Public Defender." Subsequently, defendant changed
that testimony, stating that although he attempted to

request an attorney, “rt never did finish my sentence,

38

whatever I sad."

At the conclusion of the foregoing hearing, the
trial court expressly found "beyond a reasonable doubt"
that defendant was advised of his constitutional rights
and that he made a knowing and intelligent waiver of those
rights.

As indicated by the summarized testimony, there
was ample evidence to support the trial court's ruling.
Defendant's initial assertion that he had requested an
attorney was contradicted by the interrogating officers
and the police sound technician. The plain inference from
the record is that defendant declined to talk with the
officers and then, in the same breath, changed his mind
and agreed to do so. Although defendant now contends that
all interrogation should have ceased once defendant
invoked his rights by stating “No” in response to the
officer's inquiry, it is well settled that ""A suspect who
has asserted his rights and prevented further lawful
interrogation nonetheless retains the option, thereafter,

voluntarily to initiate a confession.' ([Citations.]"

(People v. McClary, supra, 20 Cal.3d at p. 226, italics in
original.) In the present case, although defendant may
have fleetingly invoked his Miranda rights, he immediately
agreed to waive those rights without the intervention of

any urging or interrogation by the officers. The record

39

discloses no cajoling or badgering by the police. Rather,
the decision to talk appears to have been the free,
voluntary decision of defendant. Accordingly, we conclude
that the trial court did not err in admitting defendant's

Statement into evidence.

4. Admissibility of Photograph of Victim Curtis

Defendant urges that the trial court, during the
guilt phase, erred in admitting a color photograph of the
face of Mrs. Curtis, disclosing multiple bruises. We have
said recently that "Evidence Code section 352 vests the
court with broad discretion to weigh the prejudicial
effect of proffered evidence against its probative value.
{[(Citation.}] No abuse of that discretion appears: the

photograph was not cumulative, and was highly relevant

evidence on the issue of malice .... '{MJurder is

seldom pretty, and pictures, testimony and physical
evidence in such a case are always unpleasant, ...'"
(People v. Pierce (1979) 24 Cal.3d 199, 211, italics
added; see People v. Cruz (1980) 26 Cal.3d 233; People v.
Frierson, supra, 25 Cal.3d at p. 171.)

Defendant had been charged with first degree
murder of Mrs. Curtis with malice aforethought; the jury
was instructed on the alternative theories of premeditated

murder and felony murder. Accordingly, as in Pierce, the

40

photograph in questiofmbore on the issue of defendant's
requisite state of mind toward Mrs. Curtis, i.e., did he
possess malice? This fact distinguishes People v. Boyd
(1979) 95 Cal.App.3d 577, 589-590, a case which also
involved the Curtis murder. In Boyd, the accomplice of
defendant was tried under a felony-murder theory only; two
color photographs f the victim were introduced. The
Court of Appeal held that the trial court erred in
admitting these photographs because "It cannot be said

+ + » that the photographs had any degree of relevancy on
issues such as intent, malice or the degree of the offense
since, under the prosecution's theory, defendant was
guilty of first degree murder by virtue of the
felony-murder doctrine." (P. 589.)

Although the photograph which was admitted is
unpleasant to view, we conclude that the trial court did
not err in admitting it. In addition, it is noteworthy
that the Boyd court held that any error in admitting the
foregoing photographs was harmless in view of the
“overwhelming” evidence of Boyd's guilt. In our view the
evidence of defendant's guilt in the matter before us may

be similarly characterized.

5. Admissibility of Evidence of victim Ott's

Injuries

At the guilt phase, the prosecution, outside the

presence of the jury, offered to prove that the

41

investigating officers had discovered a single human hair
(possibly a pubic hair) on the neck of a wine bottle found
on the floor near victim Ott's body. The prosecution
further offered to prove that the officers also observed
an injury or abrasion near the victim's private parts.
Defendant objected to the Proposed testimony as unduly
Prejudicial (see Evid. Code, § 352) and the trial court
sustained the objection. (The evidence was subsequently
introduced at the penalty phase.)

Thereafter, Doctor Breton, the autopsy surgeon,
testified that in addition to Mrs. Ott's various injuries
and bruises, her vagina had been torn or lacerated, and
that in his opinion the injury could have been caused by a
‘foreign object such as a bottle. Furthermore, the
Prosecution elicited from defendant's jail cellmates,
Mikles and McFarland, that ad: fendant had boasted of his
sexual assault with a bottle on one of the victims.

Defendant contends that the admission of the
foregoing testimony was improper because of its
“overwhelming prejudicial nature." To the contrary, the
trial court acted well within its discretion under
Evidence Code section 352. The court properly rejected
evidence of the hair on the bottle as unduly prejudicial
in the light of its speculative nature. Trial courts,

vested with broad discretion under this section,

42

frequently sustain many objections to real or
demonstrative evidence on the ground that ts gruesome or
shocking nature nay unduly prejudice a defendant in the
eyes of the jury. (E.g., People v. Love (1960) 53 Cal.2d
_ 843, 856-857; People v. Cavanaugh (1955) 44 Cal.2d 252,
267-268.) On the other hand, expert testimony regarding
the extent of a victim's injuries and the means used to
inflict such injuries, is generally held admissible.
(People v. Jackson (1971) 18 Cal.App.3d 504, 507; People >
v. Sampo (1911) 17 Cal.App. 135, 150; see 1 Wharton,
Criminal Evidence (13th ed. 1972) § 183, pp. 344-347.)
Such evidence is often relevant on the issues of malice
and intent. (See People v. Pierce, supra, 24 Cal.3d 199,
211.)

Furthermore, the testimony of defendant's
cellmates regarding defendant's admission was rekevelt to
establish that it was defendant, not his accomp} ice Boyd,
who committed the sexual assault on victim Ott, We
conclude that the trial court did not err in admitting the

foregoing evidence.

6. Prosecutorial Misconduct

Defendant next contends that the prosecutor

improperly commented upon defendant's refusal to testify

in his own behalf. (See Griffin v. California (1965) 380

43

Ee *
SS ee
ew ie

U.S. 609.) The record reveals that during the guilt phase
of the trial, defense counsel asked the prosecutor to
stipulate that defendant was 19 years old at the time of
his arrest. The prosecutor refused, stating in the
presence of the jury "TJ will not [so stipulate). I have
no information of that [defendant's age) unless the
defendant takes che stand and wishes to so testify." The
trial court thereafter stated "All right. There is no
stipulation forthcoming,” and the matter was dropped.

Griffin forbids either direct or indirect comment
upon the failure of the defendant to take the witness

stand. The rule, however, does not extend to comments on

the state of the evidence or on the failure of the defense

to introduce material evidence or to call logical
witnesses. (People v. Vargas (1973) 9 Cal.3d 470, 475.-)
We need not decide whether the prosecutor's statement
falls within the foregoing exception, OF, alternatively,
is an indirect reference to the fact that defendant had
not previously testified, and thus is comparable to
observing that defendant has not personally denied or
refuted certain evidence, OF that defendant is in the
“best position” to explain certain facts, all of which
have been held to be Griffin error. (See id., at p- 476
and cases cited.)

The controlling fact is, as we made explicit in

44

Vargas, that such indirect, brief and mild references to
defendant's failure to testify, without any suggestion
whatever that an inference of guilt should be drawn
therefrom, are uniformly held to constitute harmless
error. (Id., at PP, 478-481.) We accordingly conclude
that, on the basis of the record before us, the remark at
issue could have had no significant impact upon the jury

and was harmless beyond a reasonable doubt.

7. Necessity for Manslaughter Instructions

Defendant argues that the trial court erred in
refusing to instruct the jury on the principles of
voluntary manslaughter (§ 192). Our review of the record
herein discloses, however, that there was no substantial
evidence deserving of consideration which might have led
reasonable jurors to reach a verdict of voluntary
manslaughter. (See People v. Plannel (1979) 25 Cal.3d
668, 684.)

Voluntary manslaughter is statutorily defined as
the unlawful killing of a human being without malice upon
a sudden quarrel or heat of passion. (§ 192, subd. 1.)
As we recently observed, "rf a killing, even though
intentional, is shown to have been committed in a heat of
passion upon sufficient provocation the absence of malice

is presumed. ([Citation.) ..- - {¥] Because the

45

ee eS
ns oe Admissibility of Witness' Prior Federal
Conviction

Defendant contends that the trial court erred in

excluding for impeachment purposes a prior 1975 robbery

55

conviction of Mikles in a federal youthful offender

proceeding. The basis for the trial court's ruling was
that under California law a juvenile court adjudication is
not considered an impeaching conviction. (Welf,. & Inst.
Code, § 203; see In re Rickey B. (1978) 82 Cal.App.3d 106,
114.)

‘Defendant urges that under federal law, a prior
juvenile adjudication may be admissible for purposes of
attacking a witness’ credibility if a conviction of that
offense by an adult would be similarly admissible and the
court is satisfied that admission thereof "is necessary
for a fair determination of the issue of guilt or
innocence.” (Fed. Rules Evid., rule 609(d).)

We need not determine, however, the applicability
of the federal rule to a state court proceeding, for it is
readily apparent from the record that defendant was not
substantially impeded in his impeachment efforts by the
challenged trial court ruling. Defendant was permitted to
disclose to the jury the fact that Mikles had suffered a
1977 robbery conviction in state court, and further that
he had been convicted of, and was awaiting sentence on,
four additional robbery counts. Quite clearly, proof of
the federal adjudication would have added nothing
significant to the force of the impeschment evidence

against Mikles which already had been adduced by defendant.

56

12. Admissibility of Witnesses’ Former Testimony

Defendant argues that the trial court erred in
admitting the preliminary hearing testimony of two
witnesses (Larry Rushing and Debria Lewis) who were
unavailable at trial. According to defendant, the
prosecutor failed to exercise reasonable diligence in
procuring the trial attendance of these witnesses.

Under California law, prior testimony may be
introduced if, among other things, the declarant is
unavailable as 4 witness. (Evid. Code, § 1291.)
Unavailability may be established by showing that the
declarant is "Absent from the hearing and the proponent of
his statement has exercised reasonable diligence but has
been unable to procure his attendance by the court's
process." (Id., § 240, subd. (a) (5)-)

. It has been stated that the requirement of due
diligence "is a stringent one for the prosecution, It is
not sufficient that reasonable diligence has been
exercised in an effort to procure a defendant's attendance
“by the court's process.’ A criminal defendant's
witness-confrontation right is deemed to require that the
prosecution make the additional showing of @ good faith
effort and reasonable diligence to procure the witness’
voluntary attendance.” (People vV- Salas (1976) 58
Cal.App.3d 460, 469-470, italics in original; see People

y. Johnson (1974) 39 Cal.App- 34 749, 755-)

57

In a recent review of the issue (People v-
Enriquez (1977) 19 Cal.3d 221, 235), for example, we
observed that a prosecutor's sole effort to procure the
attendance of a witness "was to request issuance of a
bench warrant and, at some undisclosed time, to ask the
absent witness’ mother where he might be located." (19
Cal.3d at p- 236.) No attempt was made in Enriquez to
serve the warrant or to locate the witness based on
information available to the prosecutor. We concluded
that the record disclosed "only casual indifference, not
diligence, in attempting to serve the warrant on (witness)
Prieto.” (Id., at PP» 236-237.)

In the present case, in contrast, there is ample
evidence in the record supporting the trial court's
finding of the prosecution's due diligence. The police
officers and their investigators actively sought these two
witnesses by interviewing friends and relatives, checking
with jails, hospitals and probation officers, and leaving
appropriate messages. The trial court heard extensive

testimony on the issue and expressly found that given the
“lifestyle” of these witnesses (Rushing was characterized
as a “fugitive from justice,” Lewis was assertedly a
prostitute), and the evident difficulties incurred in
trying to find them, the prosecutor exercised due

diligence under the circumstances,

58

a
a

As we recently noted in Enriquez, due diligence
is a factual question to be determined by the trial court
according to the circumstances in each case; under
familiar rules the trial court's ruling will not be
disturbed unless an abuse of discretion appears, (19
Cal.3d at Pp, 235; see also People v. Williams (1973)

9 Cal,3d 24, 35.) No such abuse appears herein,
Moreover, even were we to hold that the
prosecutor failed to exercise due diligence, any error in

admitting the former testimony of witnesses Rushing and
Lewis would be harmless beyond a reasonable doubt (see
Chapman vV- California (1967) 386 U.S. 18, 24; In Fe
Montgomery (1970) 2 Cal.3d 863, 868), because neither
witness provided significant, noncumulative testimony.
Rushing testified merely that defendant had admitted
hitting an elderly lady during the course of a burglary?
Lewis was one of several witnesses (Gaines, Hall, Mikles,
McFarland) in whom defendant confided regarding his role
in the murders, Indeed, as we have noted, defendant's own
tape-recorded statement firmly esteblished his complicity

in these crimes,

13. Exclusion of Prospective Jurors

During the voir dire examination of the jury the

trial court excused four prospective jurors who had stated

59

!

-

that they would automatically vote against the imposition

of the death penalty without regard to the evidence in the
case. (See Witherspoon v. Illinois (1968) 391 U.S. 510,

(522, fn, 21.) One of these prospective jurors

affirmatively stated that his feelings regarding the death
penalty would not affect his ability to determine
defendant's guilt or innocence. Defendant evidently
asknewledees freely that the views of these prospective
jurors regarding the death penalty disqualified them from
determining the issue of penalty under the Witherspoon
rule, and our independent examination of the voir dire
proceedings discloses that indeed each of these persons

was properly excluded under Witherspoon, Defendant does

contend, however, that exclusion of these jurors resulted
in a jury adjudicating guilt which was unrepresentative of
the community and unduly biased in favor of conviction,
Identical contentions were raised and rejected by us very
recently in Hovey v. Superior Court (1980) __ Cal.3d

(S.F, 24093], and accordingly need not be reexamined here,

14, Waiver of Right to Present Mitigating Evidence

Defendant asserts that the judgment of death must
be set aside by reason of the failure of the trial court
to obtain his personal waiver of the right to present

mitigating evidence at the penalty phase of the trial.

60

A ee eer

Defendant takes the position that his trial counsel's
submission of the penalty question to the jury without
offering any mitigating evidence was tantamount to a
concession that death was the proper penalty in this
case, Defendant relies, by analogy, on cases which
require specific and personal waiver by defendant of his
various trial rights on entry of a guilty plea or
submission of a case on a transcript which would preclude
acquittal, (See Boykin v. Alabama (1969) 395 U.S. 238;
People v,. Levey (1973) 6 Cal.3d 648; In re Tahl (1969)

1 Cal.3d 122.)

The contention lacks merit. There is no
Statutory or decisional authority requiring an
on-the-record waiver of the right to present evidence at
the penalty phase of a trial. We rejected a nearly
identical argument in People v. Murphy (1972) 8 Cal.3d
349, 365-366, where defendant contended that the paucity
of witnesses called in his defense at both guilt and
penalty phases constituted no defense at all, and was
tantamount to a guilty plea requiring the court to obtain

a waiver under Boykin-Tahl. As we noted in Murphy,

on-the-record waiver principles have no application in
trial situations where defense counsel may be expected to
advise a defendant of his rights to testify and call

witnesses,

61

We have previously discussed and rejected
defendant's related contention that his trial counsel was
inadequate and incompetent in failing to present
mitigating evidence at the penalty phase. For purposes of
the present contention, it seems clear that counsel's
submission of the case without offering mitigating
evidence on the penalty question cannot be viewed as
tantamount to any concession that the death penalty was
proper. Trial counsel in argument attempted at length to
dissuade the jury from imposition of the death penalty.
Counsel's lack of success does not alter our conclusion
that the effort was vigorous in application and reasonable
in concept. Moreover, nothing in the pertinent statutory
provisions or in the jury instructions which were given
here suggests that a death penalty was required in the
event defendant failed to offer any mitigating evidence.
(See tormer § 190.3.) Accordingly, the foregoing
authorities relied on by defendant are neither analogous
nor controlling.

Defense counsel is generally authorized to make
tactical decisions regarding the introduction of evidence
and to control court proceedings, without the necessity of
first obtaining a personal waiver from the client. (See
Linsk v. Linsk (1969) 70 Cal.2d 272, 276-278; People v.
Hill (1967) 67 Cal.2d 105, 114-115.) It is noteworthy

62

that defendant personally raised no objection whatever to

counsel's submission of the case without introducing
mitigating evidence, and further that defendant presently
does not call our attention to any specific mitigating
evidence which was withheld from the jury's
consideration. We conclude that defendant's personal
waiver was not required under the circumstances in this

case.

15. Constitutionality of 1977 Death Penalty Legislation

Defendant asserts that the 1977 death penalty law
under which he was sentenced is unconstitutional. Most of
the arguments advanced by defendant were discussed at
considerable length in People v. Frierson, supra, 25
Cal.3d 142, 172-188, 191-195, and we do not repeat them
here. The bases for the claimed invalidity include: (1)
the breadth of the jury's discretion to fix the
appropriate penalty; (2) the absence of a requirement that
the jury render findings explaining its decision; and (3)
the absence of any express statutory provisions requiring
proportionality review on appeal.

In addition, defendant contends that the 1977 law
is constitutionally inadequate in failing to require the
existence of at least one aggravating circumstance in

order to justify a verdict of death. As explained in

63

is
Frierson, however, the 1977 law requires the presence of
at least one "special circumstance" which is an
aggravating feature setting the case apart from an
“ordinary” murder case. (See id., at pp. 175-179.)
Further, the jury ig instructed to consider and to be
guided by a list of specific aggravating and mitigating
circumstances in reaching its decision, a provision
equivalent to a requirement that the jury weigh those
factors (id., at p. 180). Thus, the aggravated nature of
the offense is considered and weighed by the jury in
making its determination.

In any event, the record in the present case
discloses several aggravating circumstances connected with
the two savage murders, including the use of lethal and
unusually brutal force against two helpless and elderly
ladies, and the vicious sexual abuse of one of them. We
observe that defendant has not contended that imposition
of the death penalty would constitute “disproportionate”
punishment under the facts of this case. (See id., at pp.
180-184.) Indeed, given the aggravating circumstances
referred to above, such a contention would have been
frivolous.

The dissents of Chief Justice Bird and Justice
Mosk would hold the 1977 law unconstitutional on various

grounds, most of which were discussed in Frierson, but we

64

a eran ee
-—

respond briefly. The dissents suggest that the 1977 law
fails to provide adequate standards to guide the
sentencing discretion of the trier of fact. This issue
was treated at pages 176-178 of Frierson, where we focused
upon the close resemblance of the California statute to
the Georgia and Florida laws which were upheld by the
United States Supreme Court in Gregg v. Georgia (1976) 428
U.S. 153, and Proffitt v. Florida (°976) 428 U.S. 242.

It is suggested that section 190.3 of the Penal
Code, specifying the various aggravating and mitigating
factors to be considered by the trier of fact, is invalid
in its failure to state expressly which factors are
aggravating, and which are mitigating ones. Yet the
factors involved (such as the nature of the crime,
defendant's prior criminal conduct, the victim's consent
or participation, defendant's age or mental capacity)
properly require the jury to concentrate upon the
circumstances surrounding both the offense and the
offender, rather than upon extraneous factors having no
rational bearing on the appropriateness of the penalty.
We believe that the acgravating or mitigating nature of
these various factors should be self-evident to any
reasonable person within the context of each particular
case.

The Bird dissent further questions whether

65

defendant's diminished capacity due to mental disease or

intoxication (§ 190.3, subd. (g)) is a mitigating or

aggravating factor. We think it quite obvious that

diminished capacity of this type is a mitigating factor.

Indeed, this factor is specifically listed as a mitigating

factor by the drafters of the Model Penal Code provision

on sentencing standards; significantly, the California act

seems to have incorporated most of the factors set forth

in the Model Penal Code provision, which was referred to *
with obvious approval by the high court. (See Gregg v.

Georgia, supra, 428 U.S. 153, 193-194, fn. 44.)

The dissents complain of the absence in the
California act of any requirement that the jury file
written findings disclcsing which aggravating factors, if
any, were relied upon in imposing the death penalty. As
was fully explained in Frierson at pages 178-180, (1) the
Gregg v. Georgia et al. decisions impose no such rigid
Standards regarding the necessity of findings; (2) in any
event, the California system bears sufficient similarity
to Florida's advisory jury system upheld in Proffitt to
pass constitutional muster. Surely, if Florida's system
is valid (wherein an advisory jury makes recommendations,
without findings, to the trial judge), Californja's

system, which imposes the additional safeguard gf a jury

independently determining the penalty, must likewise be

66

PE a ee
NP ee

valid. Moreover. unlike the Florida system, California
imposes the additional requirement that the trier of fact
make a written finding of the existence of "special"
circumstances (which are "aggravating" circumstances)
befcre the death penalty may be imposed. (S§ 190.4, subd.
(a)-)

The issue of proportionality review was treated
in detail at pages 180-184 of Frierson. The Bird dissent
revives the argument that because the California
Legislature rejected proposed legislation to add
proportionality review to the 1977 law, we should not
“read into" that law similar provisions in order to
preserve its constitutionality- But as Frierson explains
(pP- 183-184), the Legislature may well have rejected such
proposals as wholly unnecessary in light of the decisions
in Proffitt and Jurek V- Texas (1976) 428 U.S. 262, which
preceded the 1977 law and which had upheld Florida and
Texas statutes containing no express provision whatever
for proportionality review.

It is also suggested that the form of
proportionality review which Frierson assures will be
available (based upon the three-pronged test of In re
Lynch (1972) 8 Cal.3d 410, 424-427) is too narrow because
it fails to determine whether the penalty is proportional

to other sentences imposed for similar crimes- This

67

bit aaa iE ae es Bld £ ronan Yd ei ndeeh NS)

statement, however, appears to ignore Frierson's express
reference to the second and third prongs of the Lynch
test, under which a comparable inquiry is to be made.
(See People v. Frierson, supra, 25 Cal.3d 142, 183.) In
any event, as indicated in Frierson (pp. 183-184), we
stand fully prepared to afford whatever kind of
proportionality review may be held constitutionally
mandated by the high court.

The 1977 death penalty law, as with all
legislation, is presumed to be constitutional (In re
Anderson (1968) 69 Cal.2d 613, 628), and it does not
“clearly, positively and unmistakably” appear to violate
the Eighth and Fourteenth Amendments as construed Ly the
federal cases (see In re Dennis M. (1969) 70 Cal.2d 444,

453).

CONCLUSION

Defendant has raised numerous contentions
regarding asserted trial court errors and trial counsel
inadequacies. However, our review of ele: senhen convinces
us that no more f>vorable verdict would have regulted had
such asserted errors or inadequacies not occursed.
Defendant received a fair trial. Mindful as we are of the
extreme gravity of the crimes for which defendant stands

convicted and of the ultimate punishment which has been

68

imposed, and in view of the overwhelming and

uncontradicted evidence of defendant's guilt of each of

the offenses charged, and of the presence of special .

circumstances which permit the imposition of the death
penalty, we conclude that no “miscarriage of justice" has
occurred within the meaning of article VI, section 13, of
the California Constitution.

The judgment is affirmed, and the petition for

habeas corpus relief is denied.

RICHARDSON, J.

WE CONCUR:

CLARK, J.
MANUEL, J.

69

cOoOPY

PEOPLE v. JACKSON

Crim. 20910

In re EARL LLOYD JACKSON on Habeas Corpus

Crim. 21285

|
CONCURRING OPINION BY NEWMAN, J.

More than a year ago I joined in Justice Mosk's
Frierson opinion. (25 Cal.3d 142, 188-196.) Yet in the case
now before us I am persuaded by neither Parts II to 1V nor Part
v of his dissent. Instead I concur with my colleagues who hold
that the statute is constitutional and that the judgment of
death therefore must be affirmed.

Very briefly I will explain why 1 do not subscribe
fully to any colleague's views. The lead opinion, I believe,
answers credibly (1) the questions on adequacy of counsel thet
have been specified by the Chief Justice and Justice Mosk, and
(2) the Chief Justice's objections concerning constitutionality

and proportionality. As to the death penalty in general, 1

still share views expressed by Justice Mosk in Frierson. I do

not, however, agree with his conclusion that four defects
require us to hold the statute unconstitutional.

How much shquld we cemand of the individuals who draft
death-penalty statutes? A reasonable and conscientious response ,
to the United States Supreme Court rulings is enough, I think.
Since I am persuaded that the California Legislature did so
respond, I vote to uphold the statute. There may well be
revision of those rulings (see Frierson, supra, 25°Cal.3d at pp.
190-195), but “a state court would be rash indeed to predict how
and when the United States Supreme Court will ultimately solve
the problem it created in Furman." (Id., at p. 195.)

If the Supreme Court does decide to prescribe certain
procedures, how might our approach to cases like this be
affected? Should we pronounce that legislative acknowledgment
of the new prescriptions is essential and (as Justice Mosk
seems to suggest) that all “elementary requirements" must be
articulated in a re-written statute? As recently as last month
we stated: "If feasible within bounds set by theif words and
purpose, statutes shculd be construed to preserve their consti-
tutionality. [Citations.]" (Conservatorship of Hof ferber
(1980) 28 Cal.3d 161 at p. 175.)

California courts and federal courts are not timid in

reading into legislation various procedural and other rules

~

¢

a ; ; deemed constitutionally required that the draftsmen may have

ro overlooked or rejected. That is demonstrably true as to count-

less requirements on matters such as unanimous verdict, proof
es beyond a reasonable doubt, and jury or judge findings. Whether

a | there be four such matters or forty (cf. Hofferber, supra, at

Se tae ee Ca

ae pp. 178-179; Frierson, supra, at p. 193, fn. 8) we should not i
“aes R "3
ne : - insist, even in death-penalty cases, that each requirement be
j
“

The ignorance of the court and jury on these
matters was of counsel's own making. For the reasons explained
above (Part I, ante) it was counsel's duty to present his evi-
dence on the issue of defendant's background and history,
rather than asking the court and jury to blindly rely on his
unexplained allusions as to "where this young man is coming
from." Nor are we required to speculate on what such evidence
might have included: the record contains significant material
on this issue that counsel could have put before the jury by
epproecibte witnesses.

The most obvious is the factual information appearing
in the probation report -- information elicited by the proba-
tion officer from sources that were equally accessible to
counsel. According to that report, defendant was born in 1957
in Arkansas, the only child of Alfred Jackson and Hollie Walker.
When he was four years old his parents separated and his mother
took him to California. She subsequently began living with a
Mr. Hackworth and had a child by him, now residing with her
at an unknown location. Defendant was raised primarily by his
paternal grandmother, Mattie Jackson, staying with her in the
Long Beach area until he was 17. He was then sent to Oakland
to live with his father, who was unemployed and subsisted on
welfare and disability payments.

At least one relevant picture of defendant's back-
ground and history appeared when the probation officer inter-
viewed defendant's grandmother, Mrs. Jackson. Acgording to

}

ll.

the probation report, the latter "states that she raised

jdefendant because his mother did not want him. When defen-

dant was nine he lived with his mother and stepfather for
a while and the latter beat him when defendant did not do
what he was supposed to do and beat him when he did what he
was not supposed to do. Mrs. Jackson also believes that
witnesses lied about defendant's part in the crimes, particu-
larly her granddaughter, Debra Hall. Mrs. Jackson describes
defendant as being a good kid who came down here in 1977 to
care for her when she was sick." Summing up, the probation
officer states in his own evaluation of the case that "Defen-
dant was reared in a home where there was no adult male
supervision until he was nine years of age. He was rejected
by both parents and then subjected to indiscriminate physical
punishment by a stepfather whom he scarcely knew."

None of this information, however, was communicated

to the jury. Yet defense counsel well knew of Mrs. Jackson

and her support of defendant throughout the trial. First,
during the voir dire proceedings on the guilt phase,

the judge, defense counsel, and prosecutor held a brief
discussion in chambers regarding the latter's complaint
that Mrs. Jackson, who was sitting in the courtroom, spoke
to the jurors when they passed her on the aisle. The
prosecutor expressed concern about the propriety of such
contacts, particularly if defense counsel intended to call

her as a witness in the penalty phase. Defenge counsel

12.

og

“Tt oe
i _
S
: 2

stated that Mrs. Jackson was about 90 years old and in his
opinion was "very senile"; nevertheless he offered to
warn her against talking with jurors. The prosecutor
responded, “I would agree that she is elderly. Whether
she is senile or not -- I don't get that impression, but
be that as it may, does counsel intend to call her as
a witness in any phase of the trial?" Counsel replied
that he did not know yet, but that he might call her
"“'cause I don't have much going for me and I have to use
everything I have got." The judge agreed that he was
very reluctant to exclude Mrs. Jackson from the courtroom,
adding the poignant remark that “in the strange world in
which the defendant now finds himself, his only ally is
his lawyer, who is white, and his grandmoiher, who is
black, . - -”

The prosecutor then explained that Mrs. Jackson
told him she was just saying hello to the jurors, and that
she seemed to answer his questions responsively; it was

for this reason that he believed she was not senile.
Defense counsel subsequently moderated his view and said,
"I have talked to her a little bit. I think she is a
little senile." He readily admitted, however, that she
had personal knowledge of defendant's background and
history: "She raised the boy and. . . he really doesn't
have anybody -- I checked that out -- other than her, .. -

And counsel acknowledged that Mrs. Jackson strong}y sup-

13.

ported her grandson: commenting that "you can't reason

with her" on the question of defendant's guilt, he con-
cluded: "She doesn't want anything to happen to the boy
and she knows it is the death penalty and she thinks the
boy is innocent, ., ."

Again, at the end of the trial and in the course
of his argument for modification of the verdict, counsel
told the court that "At no time have I ever heard from"
either defendant's mother or vithae and “the only one

that I have ever heard from or has ever given any interest

is his grandmother on his father's side, who has faithfully

always been in court" during the trial proceedings. (Italics

added.) This observation was corroborated by the prosecution
witness Johnson; who pointed out Mrs. Jackson sitting in the
courtroom during his cross-examination. Indeed, Mr. Johnson's
own testimony suggests that he too was a potential witness

for the defendant at the penalty phase. He testified that’

he had known defendant for at least four or five years,

during which time he saw him about once a week when defen-
dant visited the teenage boys of the woman with whom Johnson

was living; that defendant was “welcomed” in the woman's

5 The implication that defense counsel had simply
waited for defendant's parents to come forward of their own
accord is not rebutted, for example, by any indication in
the record that he made diligent efforts to reach them before
trial and persuade them to testify on their son's behalf. On
the contrary, according to the time log that defense counsel
submitted in support of his application for attorney's fees, ’
the first and only time he contacted defendant's father was in
a telephone "interview" held three days after the jury returned
its verdict of death.

14.

id
s

Peres a ee
*}
j

.

house; and that Johnson persuaded defendant to surrender
to the police because he was “worried about his safety."

In addition, the declarations filed in support of wee.

defendant's petition for habeas corpus contain evidence of

counsel's failure to develop and present relevant’ proof of
defendant's mental condition, another factor expressly made
admissible by the statute. As noted above, the prosecutor
argued to the jury that the circumstances of the crimes
showed defendant's mental condition to be that of a calculat-
ing and daktuiecie killer. Having failed to introduce any
mitigating evidence, defense counsel had nothing with which
to counter this argument. Yet it appears that such evidence
might well have been developed. Prior to trial, counsel

arranged to have defendant examined by psychiatrists on two

occasions for the purpose of determining whether there were
grounds for interposing a diminished capacity defense at the
guilt phase; he did not ask, however, that defendant be ex-
amined for any of the factors admissible in mitigation at
the penalty phase. In a declaration under penalty of perjury,
Steven Hough, head deputy in the Long Beach office of the
Los Angeles County Public Defender and a certified criminal
law specialist with 14 years' experience, states that a rea-
sonably competent attorney defending a client charged with a
capital etine would not have declined to introduce evidence
of any mitigating factors without first obtaining expert ad-

vice on the presence or absence of all such factogs, particu-

iS.

larly with regard to the defendant's psychological condition.

In corroboration of this view, defendant also submitted a

declaration in which John M. Stalberg, M.D., a diplomate of
the American Board of Psychiatry and Neurology specializing
in forensic psychiatry, recites that he has read the psychiatric
and police reports in this case and concludes, inter alia, "It
is my opinion as a forensic psychiatrist that Mr. Jackson should
have been, as a matter of course, given psychological testing,
specifically directed to intelligence. opr. Bailey, in his
report, noted that Mr. Jackson is 'illiterate' and the
psychiatric materials and transcribed confession would in-
dicate that Mr. Jackson has possibly borderline mental
retardation or, at best, below-normal intelligence."

On this showing the issue of adequacy of counsel
is controlled by People v. Frierson (1979) supra, 25 Cal.3d
142, 164-166.” In a companion petition for habeas corpus
filed with his appeal, Frierson submitted declarations of
experienced criminal lawyers who expressed the opinion that
a reasonably competent defense in a capital case would in-
clude presentation of mitigating evidence through lay or
expert witnesses. He also offered "several declarations
from relatives, friends and acquaintances of defendant con-

taining material which conceivably might have mitigated his

5 Although the cited portion of Frierson appears in the *
plurality opinion of Richardson, J., Clark, J., and Manuel, J.,
the court was! unanimous in reversing the judgment on this ground.
(See id. at pp. 188 (conc. opn. of Mosk, J., and Newman, J.), 196
(conc. opn. of Bird, C.J.), and 199 (conc. opn. of Tobriner, J.).)

16.

conduct. For example, defendant's mother reviewed certain
explanatory circumstances surrounding his youth and family
difficulties, and an adult friend declared that he had never
seen defendant exhibit any signs of violence or hostility."
(Id. at p. 165.) Such material is essentially indistinguish-
able from the mitigating evidence that could have been intro-
duced in the case at bi

I conclude, as we did in Frierson (ibid.), that

although these aterials in mitigation "are of doubtful legal
significance, they do demonstrate the possibility that at
least someone might have been called to testify on defendant's
behalf and to uige that his life be spared. ... It seems
highly unlikely that trial counsel, by the exercise of rea-
sonable diligence, would have been unable to locate a single
witness willing to present some mitigating testimony invited
by (former section 190.3]." I refuse to believe that on this
planet. there lives a human being who is utterly without a

single redeeming quality.

bk

7/ It is irrelevant that some of that evidence -- the explana-

tion of defendant's cruelly neglectful childhood given by iirs.

Jackson and the favorable appraisal of his character offered by
her and implied by the witness Johnson -- appears in the record on
appeal rather than in declarations filed with the petition for

habeas corpus. There is no magic in the latter declarations.

decision in Pope (23 Cal.3d at pp. 425-426) fully authorizes reliance

on the appellate record to support a contention of ineffective coun-
sel; and that source, of course, is generally more reliable than ex

_ parte declarations prepared after the fact -- often by counsel rather

than the affiant -- to justify the claims raised in a petition for

habeas corpts.

17.

III

Under Pope, the inquiry shifts at this point to a
consideration of the question whether “the record contains any
explanation for the challenged aspect of representation.” (23
Cal.3d at p. 425.) In Frierson such an explanation was offered
by the People in the form of a declaration of defendant's
trial counsel submitted with the return. We summarized its
contents as follows: “counsel asserts that he had unsuccess-
fully attempted to locate friendly’ witnesses who might testify
on behalf of defendant at the penalty phase. According to
counsel, such witnesses would have been subject to intense
cross-examination and impeachment, and would have been required
to reveal any adverse facts they knew regarding defendant's
character. In addition, trial counsel concludes that 'Tactic-
ally I determined that no evidence of mitigating factors would
be presented at the penalty phase so as to minimize the. People's

case and to impress the jury with the weight of the prosecu-

tion's burden.' (Italics added.) Moreover, defendant him-

self was not called because of counsel's opinion that ‘he
would make a poor witness.'" (25 Cal.3d at p. 165.)

We founc the proffered explanation totally unper-
schattes We ignored counsel's speculative fears of the effect
of cross-examination on character witnesses for Frierson, as

well as counsel's personal opinion that Friersan would make

a poor witness for himself. And we rejected as legally

18.

erroneous counsel's “tactic” of withholding mitigating evi-

dence so as to emphasize the prosecution's “burden.” We rea~
soned (ibid.) that if counsel believed “the prosecution had
the burden of proving to the jury the appropriateness of the
death penalty, counsel seriously misunderstood the law."

The statute expresses no preference for either penalty -~
death or life imprisonment without possibility of parole --
but leaves the choice to the jury's discretion in the light
of the aggravating and mitigating circumstances introduced.
We concluded (at p. 166) that “The People took full advantage
of their right to introduce aggravating evidence,” while
"Trial counsel's conduct, rather than emphasizing the
People's ‘burden,’ simply underscored the absence of any
mitigating circumstances in this case, greatly enhancing

the likelihood that a verdict of death would be returned.
Moreover, such a result, in our view, was reasonable fore-

seeable.”

On this issue too the case at bar closely
resembles Frierson. By 4 supplemental return, the People
have submitted a declaration of defendant's trial counsel
containing his explanations for his conduct of the penalty
phase. Insofar as relevant here he asserts that he did
not call defendant to testify in his own behalf because in
cuunsel's opinion “he would make a very poor witness."
Counsel also states he did not use the reports of the

examining psychiatrists at the trial because they contained

19.

“damaging i ramacatty 2 by defendant, and did not call the

psychiatrists themselves “because based upon telephone
conversations with them, I believed that their testimony
would not have been favorable." The latter excuses, of
course, are not only self-serving and wholly conclusory
but fail to refute Dr. Stalberg's expert opinion that defen-
dant should have been given routine psychological testing in
view of his possible “borderline mental retardation.”

Lastly, defense counsel divulges two specific
reasons why “I purposely did not call any witnesses to the
stand at the penalty phase... ." As with the trial tactic
in Frierson, each of these reasons is legally erroneous.

The first reason is that counsel “wanted to
create doubt in the minds of the jury relative to whether
their limited knowledge of Mr. Jackson's personal involve-
ment merited the death penalty ... ." Two misconceptions
are reflected in this statement. It is true that in the
guilt phase it is a valid defense tactic to "create doubt
in the minds of the jury," because the prosecution has the
burden of proving the defendant guilty beyond a reasonable
doubt. But in the penalty phase, as we observed in Frierson,
the prosecution has no such burden; to imply that raising
a “doubt" would somehow foreclose application of the death
penalty therefore suggests that here too “counsel paineberte
misunderstood the law." Furthermore, counsel's plan to

restrict the jury to only a "limited knowledge" of his client

20.

and his involvement in the events is contrary to the whole

purpose of penalty proceedings: as explained above (Part I,
ante), under the governing decisions of the United States
Supreme Court those proceedings are constitutionally neces~
sary to provide the sentencing authority with reliable informa~
tion about the person before it and to insure that he or she

be treated as a4 uniquely individual human being under the
Eighth Amendment. (Woodson v- North Carolina, supra, at pp.
304-305 of 428 U.S.) Those purposes are obviously nullified

when counsel deliberately refrains from presenting any miti-

gating evidence whatever at the penalty phase. Again, such
a “tactic” can only be explained as the result of counsel's
serious misunderstanding of the relevant statutory and con-
stitutional law.

The second reason offered by counsel for withholding
extenuating evidence is that “The prosecutor had only introduced
minimal evidence at the penalty phase but had other very damaging
evidence of other vicious attacks on people by Mr, Jackson
which it [sic] did not introduce but which could possibly
have been admissible in rebuttal if a defense relative to
mitigating factors had been presented.” The assertion is
both factually and legally untenable.

To begin with, one may question counsel's
characterization of the renewed testimony describing in
detail the bloody bottle used to sexually assaulf¢ the

elderly woman victim Ott as “only . + + minima] evidence

21.

—_- ---* — ‘— . * et
-~ —s

ta

in aggravation.” Even less persuasive is counsel's claim
that the prosecutor had additional “very damaging evidence
of other vicious attacks on people” by defendant that

was not introduced. According to the record, while the
jury was deliberating on guilt the prosecutor announced

that if the penalty phase were reached he intended to offer
evidence of certain other criminal activity of defendant as
a circumstance in aggravation. The prosecutor's first
hurdle, however, was the clear prohibition of the statute
that at the penalty phase “no evidence shall be admitted
regarding other criminal activity by the defendant which
did not involve the use or attempted use of force or violence
or which did not involve the expressed or implied threat

to use force or violence." (Former § 190.3, 2d par.) The
first item the prosecutor proposed to introduce was evidence
of a burglary in which defendant took some shirts from an
apartment. In an effort to meet the statutory requirement
of violence, the prosecutor stated that defendant broke the
apartment window with a rock. The trial court rejected the
offer, observing that burglary is “more a crime of stealth"
than of violence. This reading of the statute is plainly
correct. The “force or violence” referred to in former

section 190.3 meant force or violence against the person.

The purpose of this limitation was to place a reagonable
restraint of relevance on the number and kind of prior un-

lawful acts of a defendant that the prosecution should be

22.

permitted to introduce at the penalty phase. To extend the

statute to include the many offenses involving at least some

degree of force against property would defeat that purpose.

Thus the Legislature cannot have intended that the jury base
its decision as to whether the defendant should live or die
on evidence, for example, that he used "force" to break a
bicycle lock in order to steal a second-hand bicycle -- or,
as here, to break a window in order to slip inside an apart-

8/
ment and steal some shirts.

The remaining incidents that the prosecutor intended
to prove were a purse-snatching and an instance in which
defendant became involved in an altercation with other teen-
age boys and girls and struck them with his fist. Admittedly
these are offenses involving some "force or violence" within
the meaning of the statute; but compared with the double
murder of which defendant had just been convicted by the
jury, they scarcely amount to "very damaging" evidence of

9/
other “vicious attacks."

8/ The relatively minor nature of that incident is under-
scored by the probation report herein. According to that report,
defendant had only one prior conviction -- another potential
circumstance in mitigation not revealed to the jury -- and it
was for breaking and entering a certain apartment and taking
some shirts. Defendant explained to the probation officer that
he did it to spite the owner for spreading a rumor that he was
a homosexual. The punishment, moreover, was commensurate with
the offense: defendant was allowed to plead guilty to second
degree burglary, proceedings were suspended, and he was placed
on probation.

9/ By contrast, in the penalty phase of Frierson the
prosecutor introduced proof that shortly before the murder
the defendant had committed several robberies while armed
with a deadly weapon, and at the age of only 15 had shot and
killed another boy and joked about it afterwards.

-

23.

Crim 21285

DISSENTING OPINION BY BIRD, C.J.

I respectfully dissent.

Today, this court sends to his death an impoverished,
illiterate and possibly retarded 19-year-old black youth
by affirming a judgment that this court would not
hesitate to reverse if any other offense were involved.
I respectfully submit that it is unconscionable to affirm
a conviction on a record that indicates the following:

(1) State-appointed counsel made no attempt to
independently investigate the prosecution's evidence except
to read the police reports.

(2) No investigation of the incident or appellant's
involvement was conducted by counsel.

(3) An unexplained and unreasonable delay occurred

in obtaining an expert to assist counsel in determining

whether appellant had a defense based on his mental

condition.
(4) No action whatsoever was taken to discover
all the evidence and information Known to the state and
ensure it would be revealed prior to trial.
(5) Counsel was ignorant of important aspects of
the law of criminal procedure.
(6) Counsel completely failed to present any evidence
at the penalty phase, which was equivalent to consenting to the

entry of a death sentence.

(7) Appellant's counsel was less than
forthright in responding to claims of his incompetence
at the guilt and penalty phases.

The majority dismiss counsel's failings
as nonprejudicial. I cannot agree. Counsel's ineptness in
preparing for and handling the guilt and penalty phases of
this trial was so egregious as to amount to a denial of
due process. A young man's life will be taken by the

state as a direct result of these errors.

I
Counsel for an individual accused of a crime has
a “duty to conduct careful factual and legal investigations
and inquiries with a view to developing matters of defense

in order that he may make informed decisions on his client's

behalf... ." (In re Saunders (1970) 2 Cal.3q 1033, 1041.)

Performance of this duty requires prompt investigation
and necessitates that counsel “explore all avenues
leading to facts relevant to guilt and degree of guilt
SR oh en Standards, Defense Function (Approved
praft 1971) std. 4.1.)

This duty "exists regardless of the accused's
admissions OF statements to the lawyer of facts constituting
guilt or his stated desire to plead guilty." (Ibid.) As the
American Bar Association has observed, "([t)he relationship
of effective investigation by the lawyer to competent
representation at trial is patent, for without adequate
investigation he is not in a position to make the best
use of such mechanisms as cross-examination or impeachment
of adverse witnesses at trial or to conduct plea discussions
effectively- He needs to know as much as possible about
the character and background of witnesses to take
advantage of impeachment. . .« «+ The effectiveness of
his advocacy is not to be measured solely by what the
lawyer does in the trial; without careful preparation

he cannot fulfili his role. Failure to make adequate

pretrial investigation and preparation may be grounds

Te

»

for finding ineffective assistance of counsel." (Id.,

com. to std. 4.1.)

The duty to conduct "substantial factual
aside applies to all criminal cases, but performance
of this duty would seem to be of even greater importance
in cases where the client's life is at stake. Yet, the
record in the present case establishes that counsel's
preparation for the guilt phase of the trial was virtually
nonexistent. What preparations he did make were either
grossly inadequate, extremely tardy or both.

Twenty-nine witnesses testified for the

prosecution at the guilt phase of appellant's trial.

Although defense counsel had been appointed more than a

year before their testimony began, he did not interview

or investigate a single one of these witnesses during

that time. Nor did he employ an investigator to

carry out such tasks.2/ His entire effort at

1/

2/ ‘

~ While appellant was indigent and could not
afford to hire an investigator on his own, Penal Code
section 987.9 would have authorized the trial court to
appoint and pay for an investigator to assist in the
defense of his case. Trial counsel did not avai] himself
of the benefits of this section.

In re Saunders, supra, 2 Cal.3d at page 1048.

of a full year's "preparation" for the trial of a capital

"witness" interviewing consisted of three one-hour

sessions with two of appellant's aunts ~~ neither of whom ’
apparently had any information pertinent to the guilt
phase -- and one of the three interviews was devoted ‘

merely to obtaining "clothes for defendant." Neither of

these two persons testified at trial. Thus, in the course

case, defense counsel spent at most two hours interviewing
‘ 3
nonwitnesses about the prosecution's case. 2/

Counsel was also extremely lax in investigating

the possibility that his client might have had a diminished

capacity defense pertinent to one or both of the homicides.

/ The majority's assertion that the record now
before this court fails to disclose "the precise extent of
counsel's own pretrial investigative efforts" is not accurate.
(See maj. opn., ante, at P- {typed opn. at Pp- 13].)
Petitioner backs up his claim of his counsel's failure
to investigate bv reference to a document
filed by trial counsel in the superior court. Counsel
listed, under penalty of perjury, the time he spent “in
preparation, reading transcript, interviewing witnesses,
legal research, interviewing client, or other." This
declaration is so detailed that it even reveals a one-hour
"interview" with appellant's aunt to obtain clothes for trial
and a one-hour telephone call with appellant's father after
the trial. Simply by virtue of the details counsel included
in the declaration, it is not likely that counsel omitted some
investigative efforts he made that pertained tq issues at the
trial.

Trial counsel was fully aware of the multifaceted
attack on his competency. He has responded in an affidavit to
those factual matters which he deemed to be inaccurate. He
has never contended that the declaration he filed below
failed to accurately reflect his investigative efforts as to
both phases of appellant's trial. The “precise extent of
counsel's own pretrial investigative efforts" is fully estab-
lished by the record now before this court.

5

A psychiatric examination of a person accused of a crime should
be performed as soon aS possible after the events at issue in Order
that the results accurately reflect the capacity of the individua:

at the time of the offense, However, trial counsel in the

present case waiteg until the first trial date -- more than four
months after his appointment, and over seven months after the 3
second homicide -- to request that a psychiatrist be appointed
to examine his client. 4/

Trial counsel in this capital case did not
file a formal motion for discovery. He did not even
take the Simple steps necessary to activate the Superior court's
informal discovery policy. 2/ Instead of Pursuing this minimal

course of action, trial counsel relied solely on the good graces

,

to the appointment of a psychiatrist, counsel devoted an
average of less than two hours per week of out-of-court

discovery on the district attorney's office at least 25
days before trial. Once served, the request becomes

the delineated Procedures regarding noncompliance. Under
the superior court Policy, the request “shall be deemed

a continuing one." ft obligates both the district
attorney's office and the investigating Police agencies
to permit discovery by the accused of "all of the
information and/or evidence" in the possession of or
known to those departments. The Policy allows the
imposition of Sanctions if the State does not Properly
comply with the informal discovery request.

of the prosecutor assigned to try the case. While the
prosecutor generally provided defense counsel with access to
everything in his files, problems arose with respect to dis-
coverable materials not in his files, pertaining to the
testimony of the two county jail inmates, Mark Mickles and
Ronald McFarland.

Mickles had been interviewed by police officers
several months before trial, but the officers did not
prepare a police report concerning this interview nor did they
turn over their notes to the prosecutor. Consequently, defense
counsel was not even aware of Mickles' existence as a potential
witness until the commencement of the trial. As to the witness
McFarland, trial counsel was aware of his testimony prior to
trial but discovered during trial that McFarland's statement to
the police had been tape recorded. When counsel asked for the
tape, the prosecution discovered that it had been lost.

Counsel objected to the testimony of Mickles and
McFarland on the basis that the prosecution failed to provide
complete discovery. However, as the majority opinion recognizes,
counsel never made “a proper request" for discovery. (Ante,
at p. __ [typed ma}. opn. at p. 50).) Therefore, counsel's
objections were based merely upon an asserted violation of the

“spirit” or “theory” of discovery and were properly overruled

4

by the trial pauses’!

In addition to these casual efforts to learn
all the facts pertaining to the guilt phase of the trial,
defense counsel demonstrated poor preparation on issues
of law. Prior to trial, counsel brought a motion to
suppress appellant's confession to the police. Counsel called
this a motion under Penal Code section 1538.5. The theory
underlying the motion was the allegedly involuntary nature
of the confession. Counsel apparently was ignorant of the

fact that a section 1538.5 motion does not lie to suppress a

statement on that basis. (See People v. Superior Court (Zolnay)

(1975) 15 Cal.3d 729, 733-736.) It is permissible to bring such

a pretrial motion pursuant to Evidence Code section 402,
but the ruling on a section 402 motion, unlike a ruling

on a section 1538.5 motion, is not binding on the trial

court. (See Saidi-Tabatabai v. Superior Court (1967) 253

Cal.App.2d 257.)
Thus, counsel's pretrial motion regarding the

voluntariness of the confession should have been renewed

before the trial judge and outside the presence

— — - ——-

6/
— at one point, the majority state that defense
counsel's arrangement with the prosecutor regarding discovery
was “approved by the trial court." (Ante, at p-

{typed opn. at Pp- 18).) This quoted portion of the state-
ment is incorrect as a factual matter. Rather, as the

_majority recognize elsewhere, the prosecution was under

no legal duty to furnish discovery in this case because
of “the absence of a proper request therefor." (Ante, at

p- [typed opn. at p. 50).-)
8

of the jury. However, counsel's first feeble efforts to renew

the motion were not made until the following events had
occurred before the jury: (1) the prosecutor discussed the
confession in his opening statement; (2) the officer, who had
taken appellant's confession, testified that appellant had made
a tape-recorded statement in which he first denied guilt but
then said he "would tell us the truth"; (3) the tape recordings

were identified by the officer; (4) copies of the transcript

of the statement were distributed to all of the jurors; (5) the

first tape began to be played; and (6) defense counsel requested

that the tape be played at a louder volume. Not until this

point did defense counsel speak up and ask to approach the bench.

He said he was “not making any objection [but was] just asking

for a point of information." He said he “just want[ed] to cover

[his] bases." He asked the judge “if it is proper to re-raise
that motion [relating to the admissibility of the confession}
in front of this Court. .- - ." The judge correctly informed
counsel it was indeed proper to raise the issue again. The
jurors were told not to "read ahead" in the tape transcript,
and a hearing was held outside the presence of the jury on the
admissibility of the statement. By this time, of course, the
jurors were fully aware of the fact of appellant's confession.
No matter how the trial court subsequently ruled as to
admissibility, the jury could not have been expected to forget
it. A more inept handling of a legal motion by an attorney

would be difficult to imagine.

‘

The obvious inadequacy of trial counsel was fully
established by his failures (1) to investigate the facts and
the law and (2) to file any discovery motion. These uaiss
tive omissions would have been inexcusable even in a trial
for petty theft. Unfortunately, there is yet another
deficiency in counsel's representation. The affidavit filed
in this court by trial counsel graphically illustrates a
lack of candor with either this court or the trial court.

At trial, counsel objected to the testimony of
Ronald McFarland because it violated the “spirit”
of discovery. He told the trial court that he did not
"find out" about McFarland until the prosecutor's opening

statement. When the prosecutor responded that defense

counsel had been given the police reports on McFarland several

months earlier, counsel answered he had ignored these
reports because McFarland’s nane was not on the prosecutor's
witness list.

In his affidavit before this court, counsel
now claims that "in fact I had adequate and full discovery
from the prosecutor relative to Mr. McFarland.” He contends
he made a tactical decision not to send an investigator
out to interview McFarland because such a course of
conduct “would not have been of any benefit." However,
it is difficult to reconcile this ampect of

counsel's affidavit with his statements and behavior at

10

trial. Ten days after trial began, counsel asked for the

appointment of an investigator to interview McFarland. This

request came so late that even though it was promptly granted,

the investigator was unable to contact McFarland until after
McFarland had completed his direct testimony.2/ The inability

to interview McFarland -- far from being of no concern, as is

now asserted -- required counsel to inform the trial court

he was "not prepared to adequately cross-examine Mr. McParland. "8/
As a consequence of counsel's admission, the trial judge

delayed cross-examination to a later date.

Despite this abysmal performance by trial
counsel, the majority uphold appellant's convictions,
In so doing, they ignore that "[t])he right

to have the assistance of counsel is too fundamental

1/

~ he investigator appointed by the court had
previously investigated more than 75 murder cases and 15
death penalty cases. He stated in an affidavit that "it
has been my experience over the years that in cases as
serious as murder, . . . attorneys bring me into the
case immediately following the preliminary hearing, and
sometimes even before the preliminary examination... ."

8/ ‘

As a sanction against the prosecution's
violation of the “spirit” of discovery trial counsel moved
that McFarland be preclwded from test fying and stated that
he relied on the district attorney's witness list.

He said that the list contained “some 32 witnesses to
investigate and follow up” and that "those were the
witnesses . . . I checked in preparing this case,"

In light of what this court now knows about
counsel's investigative efforts, this assertion to the
trial court appears disingenuous at best.

ll

and absolute to allow courts to indulge in nice

calculations as to the amount of prejudice arising from

its denial." (Glasser v. United States (1942) 315 U.S.

60, 76.)

In Chapman v. California (1967) 386 U.S. 18,
the Supreme Court noted that denial of the right to
counsel was not among those "constitutional errors which
in the setting of a particular case are so unimportant
and insignificant that they may, consistent with the
Federal Constitution, be deemed harmless, not requiring the
automatic reversal of the conviction." (Id., at p. 22.)
On the contrary, the-court reiterated its position
that the right to counsel is "so basic to a fair trial
that [its] infraction can never be treated as harmless’
error... .": (Id., at p. 23 and fn. 8.) “That, indeed,
was the whole point of Gideon v. Wainwright [1963] 372
U.S. 335, overruling Betts v. Brady [1942] 316 U.S. 455.”
(Id., at p. 43 (conc. opn. of Stewart, J.).) Gideon
recognized that a trial without counsel is inherently
unfair, even though "defendants faced with overwhelming
evidence of guilt might never es able to demonstrate
prejudice from the absence of counsel." (Cooper y-
Fitzharris (9th Cir. 1978) 586 F.2d 1325, 1335, fp.
omitted (conc. and dis. Opn. of Hufstedler, J.).) See also

Comment, Defects in Ineffective Assistance Standards

12

Used by State Courts (1979) 50 Colo. L.Rev. 389,

390-391.)

It is clear that "the right to counsel is the
right to the effective assistance of counsel." (McMann
v. Richardson (1970) 397 U.S. 759, 771, fn. 14, citations omitted.)
"'after all, the purpose of Gideon was not merely to
supply criminal defendants with warm bodies, but rather
to guarantee reasonably competent representation. '"

(Cooper v. Fitzharris, supra, 586 F.2d at p. 1338, fn.

1l (conc. and dis. opn. of Hufstedler, J.).) The

Supreme Court's decisions have generally reversed

criminal convictions for denials of effective assistance,

even though counsel may have been physically present through-

out the trial, and even though prejudice could not be shown. os
(Herring v. New York (1975) 422 U.S. 853; Geders v.

United States (1976) 425 U.S. 80; Holloway v. Arkansas

(1978) 435 U.S. 475.)

These cases support the principle that the harmless
error rule should not be used as a cure-all to affirm a conviction
where there has been a denial of the right to effective
assistance of counsel. That right is “more than, a
right to be free from prejudicial trial errors. The
right to competent counsel is also based on considerations of
procedural fairness that apply regardless of the strength of
the case against an accused." (Cooper v. Fitzharris, supra, 586
F.2d at p. 1325, fn. omitted (conc. and dis. opn. of :
Hufstedler, J.).)

13

This court has acknowledged that "[i]f in the

trial of a serious charge an appointed attorney or even a
chosen one grossly neglects the preparation of the case the
effect is to deny the defendant the right to counsel." (In
~ re Rose (1965) 62 Cal.2d 384, 386, citation omitted.)

Reversal is required despite an absence of demonstrated
prejudice because "the evil lies in what the attorney does not
do, and is either not readily apparent on the record, or occurs
at a time when no record is made." (Cooper v. Fitzharris,
Supra, 586 F.2d at p. 1332.) In such situations, a rule
requiring a showing of prejudice "would not be susceptible
of intelligent, even-handed application" and would require
“unguided speculation." (Holloway v. Arkansas, supra,

435 U.S. at pp. 490-491.)

Consistent with this precedent and its rationale,
many courts have required a showing of prejudice when the 3
claim of ineffective assistance of counsel is based on
errors and omissions at trial. 2/ (Cooper v. Fitzharris, supra,

586 F.2d 1325; United States ex rel. Green v. Rundle (3d Cir.

9/

= This view is consistent with People v. Pope
(1979) 23 Cal.3d 412. Pope established principles to govern
claims of the ineffective assistance of counsel in cases
where those claims are based on specific errors or omissions
of counsel and the impact of these errors can be readily
ascertained. Such principles are inapplicable when the denial of
effective assistance of counsel “renders impossibie a meaningful
assessment of prejudice on the record.” (People v. Coffey
(1967) 67 Cal.2d 204, 215, fn. omitted, original emphasis;
see also Ewing v. Williams (9th Cir. 1979) 596 F.2d 391, 397-
399 (dis. opn. of Ely, J.).)

14

1970) 434 F.2d 1112; United States v. DeCoster (D.C. Cir. 1973)
487 F.2d 1197; Moore v. United States (3d Cir. 1970) 432 F.2d
730.) Even these courts have recognized the need for a different
rule when prejudice cannot be determined from the record.

For example, the Third Circuit Court of Appeals has said:

“In many instances ineffective assistance of counsel may

have had so pervasive an effect on the process of guilt
determination that it is impossible to determine accurately
the presence or absence of prejudice, . . . In such instances
a finding of departure from the standard of normal competence
requires without more, a new trial.” (United States ex rel.
Green v. Rundle, supra, 434 F.2d at p. 1115.)

Since counsel failed to investigate the facts and
the law in this case, the ineffectiveness of his representa-
tion by definition cannot appear on the trial record. As
Chief Judge Bazelon has recognized, “proof of prejudice may
well be absent from the record precisely because counsel has
been ineffective. For example, when counsel fails to
conduct an investigation, the record may not indicate which
witnesses he could have called, or defenses he could have
raised." (United Scates v. DeCoster, supra, 487 F.2d at p. 1204,

fn. omitted. )?2/Even an evidentiary hearing to establish “why

-_——

10/ Pointing out the importance of guch investigation,
the Third Circuit has recognized that such errors would not be
visible in a trial record. “The exercise of the utmost skill
during the trial is not enough if counsel has neglected the
necessary investigation and preparation of the case or failed
to interview essential witnesses or to arrange for their
attendance. Such omissions, of course, will rarely be visible
on the surface of the trial. . .." (Moore v, United States,
supra, 432 F.2d at p. 739.)

15

counsel acted or failed to act in the manner challengea"2)/ can

accomplish no more than raise speculation as to what evidence
Or witnesses might have been uncovered by prompt investigation,
what defenses might have been available had the accused beak
promptly examined by a psychiatrist, or what other evidence
favorable to the defense might have been revealed by interviews

and investigations of the prosecution's witnesses.

In addition to violating. the Sixth Amendment,
the lack of adequate pretrial factual investigation
and the failings of counsel at the guilt phase trial also
amounted to a denial of due process and fundamental fairness
in the context of this capital trial. The United States
Supreme Court has long made distinctions between the standards
of fairness that apply to capital cases as opposed to other
criminal cases. (Powell v. Alabama (1932) 287 U.S. 45, 71-72;
Reid v. Covert (1957) 354 U.S. 1, 45-46, 77 (sep. conc. opns. of |
Frankfurter and Harlan, JJ.).) More recently, the high a
court has explicitly stated that due process scrutiny is
stricter in death penalty cases. (Woodson v. North Carolina
(1976) 428 U.S. 280, 305 (opn. of Stewart, Powell, Stevens, JJ.).)
The high court set forth the reasons why a higher stan-
dard is required in cases which involve the death penalty. “From
the point of view of the defendant, [the death penalty] is
different in both its severity and its finality, From the point

of view of society, the action of the sovereign in taking

1i/ People v. ‘Pope, supra, 23 Cal.3d at page 426.

‘

16

the life of one of its citizens also differs dramatically

from any other legitimate state action." (Gardner v.
Florida (1977) 430 U.S. 349, 357-358.)+2/

“The assistance of counsel is often a requisite to the

very existence of a fair trial." (Argersinger v. Hamlin (1972)

407 U.S. 25, 31; see also Powell v. Alabama, supra, 287 U.S. at

pp. 68-69.) Indeed, the Sixth Amendment right to counsel was con-
sidered an "'immutable principle of justice,'" and was one of the
first specific guarantees contained in the Bill of Rights which was
applied to the states through the due process clause. (Powell

v. Alabama, supra, 287 U.S. at p. 71, quoting Holden v. Hardy
(1898) 169 U.S. 366, 389.)

The question in this case is whether the state may
executé a person when his state-appointed attorney failed to
properiy investigate his case. Ina determination of this
question, the court must weigh society's interest in the
appearance of fairness in the administration of the death
penalty. As the Supreme Court has pointed out, "(ijt is of
vital importance to the defendant and to the community that any
decision to impose the death sentence be, and appear to be,
based on reason rather than caprice or emotion." (Gardner v.

Florida, supra, 430 U.S. at p. 358.)

12/ While Woodson and Gardner were concerned with
procedural fairness in the penalty phase of capital trials,
the high court recently ruled that: “[t)he same reasoning
must apply to rules that diminish the reliability of the guilt
determination." (Beck v. Alabama (1980) U.S. bi eee
{100 S.Ct. 2382, 2389-2390) .)

17

There is indeed an element of caprice in the
judgment of death under review. Appellant suffered the
random misfortune of the appointment of a state-appointed
attorney who failed to independently investigate his case and who:
lacked knowledge of basic criminal procedure. A ruling
such as that being rendered by the majority that this
lamentable representation satisfies the highest standard of
procedural fairness can only lend credence to the charge that
the death penalty is arbitrarily and discriminatorily
inflicted upon the poor, who are unable to retain competent
counse .+2/

In this case, counsel was either unable or
unwilling to investigate his client's cause. “Ultimately, we
can never know what would have happened had competent
representation been provided, for even seemingly hopeless
cases may take unexpected turns in the hands of
effective counsel." (Cooper v. Fitzharris, supra, 586 F.2d at

p. 1339 (conc. and dis. opn. of Hufstedler, J.).) How can

13/ The substance of this complaint was found to
be true of pre-196/ death penalty administration by the
President's Commission on Law Enforcement and Administration
of Justice: "The death sentence is disproportiaqnately imposed
and carried out on the poor, the Negro, and the members of
unpopular groups." (The Challenge of Crime in q Free Society
(1967) p. 143.)

° 18

the court divine what might have happened if counsel

had conducted a prompt inquiry into his client's mental status
or a thorough investigation of the becnensktons witnesses or
careful legal research into matters of discovery and procedure?
Under these circumstances, this court should not indulge

in “nice calculations"24/ or “unguided speculation, "+2/
Rather, it should reverse the judgment entered below since
appellant did not receive the effective assistance of counsel

at either the guilt or penalty phaset&/ of his trial,

II
Next, the constitutional validity of the old 1977

death penalty law must be addressed. The procedures set

14 Glasser v. United States, supra, 315 U.S.
at page 76.

13/ Holloway v. Arkansas, Supra, 435 U.S. at
page 491.

16/ I agree with Justice Mosk's analysis that
appellant did not receive the effective assistance of counsel
at the penalty phase of his trial.

19

- a 17/

forth in the old 1977 death penalty legislation—~ differ

only superficially fxom those contained in the pre-1972 death
penalty statutes. The pre+1972 laws were declared uncon-
stitutional because they failed to give adequate guidance
to euilinnt and juries as to which persons, convicted of
capital crimes, should live and which should die. Despite
the fact that these statutes are similar, the majority in their
opinion curiously find the 1977 legislation constitutional.
(See People v. Murphy (1972) 8 Cal.3d 349, 352, fn. 2; see
also, People v. Frierson (1979) 25 Cal.3d 142, 176 (lead
opn. of Richardson, J.).)

: The majority err in two important respects.

First, they rely on an analysis articulated by only three

justices of this court in People v. Frierson, supra,

25 Cal.3d at pages 172-188. Second, the majority ignore
the fact that the United States Supreme Court intended its
recent decisions on capital punishment to be more than mere

exercises in semantics. A death penalty statute is required by

the federal Constitution to provide the judge or jury with

iv/ Former Penal Code section 190 et seq.,
Statutes 1977, chapter 316, repealed by initiative measure
(Prop. 7) on November 7, 1978. See Penal Code section
190 et seq. as enacted by Proposition 7. .
All subsequent references in this opinion to code
sections shall be to the California Penal Code, unless
otherwise stated.

20

“specific and detailed guidance* .22/ The 1977 legislation
does not meet this important requirement.

The relevant constitutional history begins in 1972
when the United States Supreme Court issued its decision in 3
Furman v. Georgia (1972) 408 U.S. 238. There, the high
court held unconstitutional a Georgia statute that gave
the sentencing judge or jury complete and unguided discre-
tion as to vyhether the death penalty should be imposed..
Central to this holding was the court's conviction that the
lack of sentencing standards “create[d] a substantial risk that
the punishment [of death] will be inflicted in an ‘tik trace
and capricious manner." (See Godfrey v. Georgia (1980)

U.S. ’ [100 S.ct. 1759, 1764].)

Furman left unresolved two major questions.
Can a sentencing judge or jury constitutionally
be given any discretion in determining whether to
impose a death sentence? If some discretion were a
permissible, how much guidance does the Constitution require
in order to avoid the pitfalls identified in Furman? These
questions were addressed in five companion cases handed down

on July 2, 1976, 22/ Not only was discretion allowed, it was

18/ sroffitt v. Florida (1976) 428 U.S. 242, 253. 3

| 19/ Gregg v. Georgia (1976) 428 U.S, 153; Proffitt
v. Florida, supra, 428 U.S. 242; Jurek v. Texag (1976) 428
U.S. 262; Woodson v. North Carolina, Supra, 428 U.S. 280;
Roberts (Stanislaus) v. Louisiana (1 428 U,S. 325.
Hereinafter, these cases will jointly be referred to as

Gregg et al.

(Pn. continued)

21

SO ee

constitutionally required, at least for the overwhelming

majority of crimes. 2°/ (Woodson, supra; Roberts (Stanislaus)

supra. )

However, it is an understatement to observe that
Gregg et al. gave few clear cut answers to the second of the
issues left open in Furman. The relevant decisions since
Gregg have not provided the guidance necessary to resolve
this question. Nevertheless, certain general themes do emerge.
If a state wishes to authorize a death sentence as punishment

for murder, “it has a constitutional responsibility to tailor

(Fn. 19 continued) . | ee” 8

‘No single opinion in any of the five cases garnered
the signatures of a majority of the court. However, the dis-
position of each of the cases varied according to the votes
of three justices -- Stewart, Powell, and Stevens, JJ. -- who
delivered a joint lead opinion in each case. Those lead
opinions have since been deemed the “prevailing opinion(s]"
and have been viewed as "the Court's decisions." (See, @-g-,
Godfrey, supra, U.S. at Pp. | {100 S.Ct. at
p. 1762); Coker v. Georgia (1977) 433 U.S. 584, 591-592.)

20/ | The possibility was left open that a mandatory >

death penalty statute might be upheld if “limited to an
extremely narrow category of homicide, such as murder by a
prisoner serving a life sentence, defined in large part in
terms of the character or record of the offender." (Woodson,
supra, 428 U.S. at p. 287, fn. 7, and p. 292, fn. 25;

roberts (Stanislaus), supra, 428 U.S. at p. 334, fn. 93
Roberts (Harry) v. poetetane (1977) 431 U.S. 633, 637, fn. 5.)

However, at least two courts that have subse-
quently considered this issue have struck down mandatory
death penalty laws. (Graham v. Superior Court (1979)

98 Cal.App.3d 880; State v. Cline (1979) R.I.
{397 A.2d 1309).)

22

ie... .
ee vl Gia? SAE

~$

’
and apply its law in a manner that avoids the arbitrary and

capricious infliction of the death penalty." (Godfrey, supra,

U.S. at p. ___—_s—s« (100 S.Ct. at p. 1764).) It must reserve
the death sentence for the most extreme of cases. (Gregg,
supra, 428 U.S. at p. 187 (opn. of Stewart, Powell, Stevens,
JJ.).) Even within this population of extreme offenders,
there must be provided a “meaningful basis" for distinguish-
iuy the cases in which death should be imposed from those
in which it should not. (Lockett v. Ohio (1978) 438 U.S.

586, 601 (plur. opn. of Burger, C.J.).) Such a “basis"

makes it more certain that the decisions of the sentencing

_ judges and juries will be rational and consistent throughout

a state. (Ibid.) The court also found a constitutional
need to ensure the “reliability [of] the determination
that death is the appropriate punishment in a specific

case." (Woodson, supra, 428 U.S. at p. 305, fn. omitted

(opn. of Stewart, Powell, Stevens, JJ.).-)
To effectuate these constitutional goals, the

Supreme Court indicated that safeguards are necessary at

both the trial and appellate court levels. The state "must
channel the sentencer's discretion by 'clear and objective

standards’ that provide ‘specific and detailed guidance,'

23

in
¥

;

br!

and that ‘make rationally reviewable the process for imposing

a sentence of death.'" (Godfrey, supra, U.S. at p.

[100 S.Ct. at pp. 1764-1765],-fns. omitted; see also Woodson,

supra, 428 U.S. at p. 303.)

Controlling the Discretion of the Sentencing
Authority at the Trial Level

The Supreme Court has indicated that once an individual
has been convicted of a capital offense, there must be "an

informed, focused, guided, and objective inquiry into the

question whether he should be sentenced to death." (Proffitt,

supra, 428 U.S. at p. 259.) At this proceeding, the sentencing

authority is to be both “apprised of the information relevant

to the imposition of sentence and provided with standards to

guide its use of the information." (Gregg, supra, 428 U.S.

at p. 195, emphasis added; see also, id., at Pp. 192.)
California's 1977 law does permit the introduction

of relevant evidence, but it fails to provide (1) standards

by which the sentencing authority can evaluate that evidence,

(2) safeguards to ensure that the judge or jury does in fact

focus on the important or permissible sentencing considerations,

(3) a mechanism to ensure that any decision imposing a sentence

of death is reliable, and (4) a procedure to enable a reviewing

24

he

court to meaningfully evaluate a sentencer's decision to
take a person's life. Whatever may validly be said as

to the lack of clarity of the United States Supreme Court in

this area (see, e.g., Frierson, supra, 25 Cal.3d at pp.

190-195 (conc. opn, of Mosk, J.)), it isa highly questionable
assertion that the high court would uphold this legislative
scheme with all its shortcomings.

Preeminent among the shortcomings of the 1977 \
legislation is its complete failure to provide meaningful
Standards. The sentencing authority is directed by former
section 190.3 to consider "the aggravating and mitigating
circumstances referred to in this section + «+ « «" However, the
section explicitly allows consideration of any circumstance
which the sentencing authority deems to be extenuating.

(See former § 190.3, subd. (j).) The statute
fails to inform the sentencing authority whether its consid-

. P 3 ; a 2
eration of aggravating circumstances is Similarly open-ended. 22/

canpeuieneee

21/ The second sentence of former section 190.3
allows the introduction into evidence of, inter alia,
"evidence .. .as to any matter relevant to aggravation
+ + « «" However, the fact that aggravation evidence is
admissible does not mean that the sentencing authority may
use the evidence ii, any manner it chooses. The Supreme Court
has held that the sentencing authority must be “provided with
standards to guide its use of the information." (Gre ° 5 opEe
428 U.S. at p. 195.) The language of former section 0. s
problematical in this regard. Although the section instructs
the sentencing authority to be guided by "the aggravating . ..
circumstances referred to in this section," it is unclear whether
those aggravating circumstances are limited to the 10 "factors"
listed in subdivisions (a) through (j) or whether “any matter

relevant to aggravation" may be used as the basis for imposing
a death sentence,

25 (Fn. continued)

Standing alone, this imprecision might not be
sufficient to invalidate the 1977 procedures, since former
section 190.3 does direct the sentencing authority to
consider at least the particular "factors" set forth in

subdivisions (a) through (j). The United States Supreme

Court has suggested that the constitutional requirement of

sentencing guidelines may be satisfied if the sentencing
authority is given "guidance" regarding those factors which

"the State, representing organized society, deems particularly

relevant to the sentencing decision." (Gregg, supra, 428 U.S.

at p. 192, emphasis added (opn. of Stewart, Powell, Stevens,
JJ.).) The thrust of this language in Gregg appears to be
to ensure that the state inform the sentencing authority of
the primary penological purposes it seeks to advance through
its use of capital punishment so that consistency of decision
is possible. (See McGautha v. California (1971) 402 U.S.
183, 280-287 (dis. opn. of Brennan, J.).)

Since the 1977 legislation fails to inform the
sentencing authority as to which of the enumerated
factors are aggravating circumstances and which
are mitigating, the requirements of Gregg are not satisfied.

If the state intends to advance some penological goal by

(Fn. 21 continued)

Neither today's majority holding nor indeed the

instructions given to appellant's jury addressed this important
ambiguity.

26

(

E : directing the attention of the sentencing authority to
certain specified factors, how can the judge or jury know
what that policy is? As a direct result, death penalty
verdicts will be random and sporadic rather than consistent.
Different conclusions will be reached by different judges
or juries as to whether a specified factor is aggravating
or mitigating.

For example, former section 190.3 lists as one of
the enumerated factors “(w)hether or not at the time of the
offense the capacity of the defendant pa appreciate the
criminality of his conduct or to conform his conduct
to the requirements of law was impaired as a result of
mental disease or the effects of intoxication." (Subd. (qa).)
Some sentencing authorities, who find the evidence supports
this factor, may come to the conclusion that this is a
mitigating circumstance. Others, considering the tenor of

our times, may consider this a factor favoring execution.

«

The point is that neither sentencing authority can determine
whether its version is correct. As a result, identically
situated defendants will be sentenced differently. The
Legislature, in directing the attention of the sentencing

: authors ty to these factors but omitting to indicate whether

their presence or absence is a mitigating or aggravating

27

circumstance, set up a statutory scheme that ensures
inequality of treatment.

Significantly, none of the death penalty statutes
upheld in Gregg et al. had the flaw which is part of the 1977
legislation. The Georgia statute directed the sentencing
authority's attention to ten factors it deemed to be

* aggravating" 22/ the. Florida law enumerated eight

23/

“aggravating” and seven "mitigating" circumstances;
and in Texas the jury was informed that “yes" answers to
each of the three statutory eabnley questions would result
in‘a death sontendaia”

There is another important flaw. The statutes
in Georgia, Florida, and Texas all required the sentencing
authority to find at the penalty trial that at least one of
the statutorily enumerated aggravating factors was present

to justify a decision that a particular defendant should

be executed. Also, findings by the sentencing authority

22/ Gregg, supra, 428 U.S. at pages 165-166,

footnote 9.

23/ Proffitt, supra, 428 U.S. at pages 248-249,
footnote 6.

24/ Jurek, supra, 428 U.S. at page 269; see

Adams v. Texas (June 25, 1980, No. 79-5175) U.S. ’
, footnote 1 and page [100 S.Ct. 2521, 2524, fn. 1,

and pages 2526-2527).

‘

28

had to be in written form. 22/ Unfortunately, the California

statute has neither of these provisions.

These interrelated provisions serve to
ensure that the sentencing authority's discretion has in
fact operated within statutory limits. They focus the sentencing
authority's attention on the “particularly relevant"26/ sentencing
factors. These provisions ensure that persons will not be sen-
tenced to die unless the important penological goals of the state

will be advanced. The risk that a death sentence will be imposed

—

23/ The Georgia statute mandates that before a

death sentence

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1835%3A1. Public record. Not legal advice.