Opposition Brief — Andrew Edward Robertson v. California

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FILED

4) JUL <i 1989

No. 88-7619 JOSEPH F. SPANIOL, JR.

CLERK

b IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

ANDREW EDWARD ROBERTSON,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

EDITOR'S NOTE

Respondent.

THE FOLLOWING PAGES WERE POOR HARD CO

AT THE TIME OF FILMING. IF AND WHEN +s

BETTER COPY CAN BE OBTAINED, A NEW FICHE na

WILL. BE ISSUED. ; racine ote

‘FOR WRIT OF CERTIORARI

JOHN K. VAN DE KAMP

Attorney General

RICHARD B. IGLEHART, Chief Assistant

- Attorney General

- HARLEY D. MAYFIELD,

Assistant Attorney General

RUDOLF CORNONA, JR., Supervising

Deputy Attorney General

MAXINE P. CUTLER,

q Deputy Attorney General

( 110 West A Street, Suite 700

\ San Diego, California 92191

Telephone: (619) 237-6589

Attorneys for Respondent

—_ ee

QUESTIONS PRESENTED

1. Does lack of advisement /as to the effect of a

deadlocked jury invalidate petitioner's waiver of a jury on

penalty where petitioner was represented by two competent

attorneys; counsel, ir petitioner's presence, expressed sound

tactical reasons for waiver; and the court engaged petitioner in

extensive voir dire expressly directed to determining .

petitioner's waiver was knowing, intelligent and voluntary?

2. May uncharged violent crimes be considered at the

penalty phase for the purpose of determining appropriate penalty,

as provided by statute, regardless of whether independent

prosecution for those crimes would be barred by the statute of

limitations?

3. Must a burden of proof be allocated at the penalty

phase even though the 1977 death penalty law meets constitutional

standards of narrow death eligibility, and there is no such

constitutional or statutory requirement?

PARTIES

Petitioner, Andrew Edward Robertson, is a prisoner

incarcerated under judgment of death at the California State

Prison at San Quentin, California. Respondent is the People of

the State of California.

a ee es ee

TABLE OF CONTENTS

QUESTIONS PRESENTED i

PARTIES i

OPINION BELOW 1

JURISDICTION 1

CONSTITUTION, STATUTES AND PROVISIONS INVOLVI > 1

STATEMENT OF THE CASE 2

STATEMENT OF THE FACTS 2

SUMMARY OF RESPONDENT'S ARGUMENT ll

ARGUMENT

I PETITIONER'S WAIVER OF JURY ON PENALTY IS NOT

INVALIDATED DUE TO LACK OF ADVISEMENT AS TO EFFECT

OF A DEADLOCKED JURY WHERE PETITIONER WAS REPRESENTED

BY TWO COMPETENT COUNSEL; COUNSEL; IN PETITIONER'S

PRESENCE, EXPRESSED SOUND TACTICAL REASONS FOR WAIVER;

AND THE COURT ENGAGED PETITIONER IN EXTENSIVE VOIR

DIRE EXPRESSLY DIRECTED TO DETERMINING PETITIONER'S

WAIVER WAS KNOWING, INTELLIGENT AD VOLUNTARY 13

II UNCHARGED VIOLENT CRIMES MAY BE CONSIDERED AT THE

PENALTY PHASE FOR THE PURPOSE OF DETERMINING

APPROPRIATE PENALTY, AS PROVIDED BY STATUTE, REGARDLESS

WHETHER INDEPENDENT PROSECUTION FOR THOSE CRIMES WOULD

BE BARRED BY THE STATUTE OF L MITATIONS 16

III THERE IS NO CONSTITUTIONAL OR STATUTORY REQUIREMENT

THAT A BURDEN OF PROOF BE ALLOCATED AT THE PENALTY

PHASE, AS THE 1977 DEATH PENALTY LAW MEETS

CONSTITUTIONAL STANDARDS OF NARROW DEATH ELIGIBILITY,

INDIVIDUALIZED SENTENCING, AND APPELLATE OVERSIGHT 20

CONCLUSION 22

ii.

People v. Robertson

Page 33 Cal.3d 21 (1982) 18

Cases

People v. Robertson

Barclay v. Florida 48 Cal.3d 18 (1989) 14, 15

463 U.S. 939 (1973) 21

People v. Rodriguez

California v. Ramos 42 Cal.3d 730 (1986) 21

463 U.S. 992 (1983) 20

lev. Terry

ev. Issac 70 Cal.2d 410 (1969) 17, 18

456 U.S. 107 (1982) 16

Proffit v. Florida

Estelle v. Smith 428 U.S. 242 (1976) 17, 21

451 U.S. 454 (1981) 17

Spaziano v Florida

Gregg v. Georgia 468 U.S. 447 (1984) 13

428 U.S. 153 (1976) 17 :

State v. Bartholomew

Harris v. Pulley 683 P.2d 1079 (Wash. 1984) 18

692 F.2d 1189 (9th Cir. 1982) 21 '

State v. Bobo ;

Harris v. State 727 S.W. 2d 945 (Tenn. 1987), cert. denied,

455 A.2d 979 (Md. 1983) 15, 20, 21 ___U.S. __, 98 L.Ed 2d 155 18 -f

Hicks v. Oklahoma State v. McCormick ,

447 U.S. 343 (1980) 13 397 N.E. 2d 276 (1979) 19 .

Hildwin v. Florida . Toussie v. United States

__U.S.____ in No. 88-6066 (1989) 13 397 U.S. 112 (1970) 16 .

Jurek v. Texas United States v. Cochran 5

428 U.S. 262 (1976) P 17 770 F.2d. 850 (9th Cir. 1985) 15 j

Martinez v.State United States v. Marion i

522 A.2d 950 (Md. 1987) 15 404 U.S. 307 (1971) 16 :

People v. Ashford United States v. Martin

520 N.E.2d 332 (Ill. 1988) 14 704 F.2d 267 (6th Cir. 1983) 14

le v. Balderas Zant v. Stephens

41 Cal.3d 144 (1985) 17 462 U.S. 862 (1983) 20

le v. Bandhauer

66 Cal.2d 524 (1967) 20 Statutes

le v. Frierson Cal. Pen. Code, “3

25 Cal.3d 142 (1979) 21 § 187 2 |

§ 190.3 17

le v. Gates § 190.4(b) 13

43 Cal.3d 1168 (1987) 18

Title 28 United States Code § 1257(3) 1

People v. Haskett

30 Cal.3d 841 (1982) 16

le v. Hough

26 Cal.2d 618 (1945) 13

‘e™=*

ev. Jackson

28 Cal.3d 264 (1980) 21

tet we

le v. Jennings

46 Cal.3d 963 (1988) 17

hee pe ae

le v. Morgan

492 N.E.2d 1303 (Ill. 1986) 14

People v. Phillips

41 Cal.3d 29 (1985) 17

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No. 88-7619

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

ANDREW EDWARD ROBERTSON,

Petitioner,

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

OPPOSITION TO 2ETITION

FOR WRIT OF CERTIORARI

OPINION BELOW

Petitioner seeks review of an opinion of the California

Supreme Court affirming his judgment of death. (People v.

Robertson, 48 Cal.3d 18, 255 Cal.Rptr. 631, 767 P.2d 1109 (1989).

The opinion of the California Supreme Court is attached as

Appendix A to the petition.

JURISDICTION

The opinion below is a final decision of California's

highest court. Under Title 28 United States Code section

1257(3), this Court has jurisdiction by writ of certiorari to

review this decision for error under the Constitution of the

United States.

United States Constitution, Sixth, Eight and Fourteenth

Amendments, and California Penal Code sections 190.3 and 190.4 of

the 1977 death penalty law (former Pen. Code, §§ 190-190.6,

repealed by Prop. 7, Gen. Elec. (Nov. 7, 1978).)

STATEMENT OF THE CASE

Following a jury trial, petitioner was convicted in 1978 of

two first degree murders (Cal. Pen. Code, § 187) and was found to

have personally murdered two women in 1977 in San Bernardino... In

addition, the jury found true the special circumstances of

multiple first degree murders (former § 190.2 subd. (c)(5), both

of which were wilful, premeditated and deliberate and were

committed during the commission or attempted commission of

robbery (former Cal. Pen. Code § 190.2 subd. (c)(3)(i), kidnap

(former Cal. Pen. Code § 190.2 (c)(3)(ii), and rape or attempted

rape (former Cal. Pen. Code § 190.2 subd. (c)(3)(iii), and

inve lved the infliction of torture (former Cal. Pen. Code §

190.2, subd. (c)(4).) (CT Supp. 45-59.) ‘The jury determined the

penalty to be death. (CT 147.)

On automatic appeal, the California Supreme Court affirmed

the judgment of guilt and the nine special circumstance findings

but reversed the judgment as to the penalty. (People v.

Robertson, 33 Cal.3d 21, 60 (1982).)

On retrial of the penalty phase, petitioner waived a jury

trial. The trial court fixed the penalty as death. On automatic

appeal, the California Supreme Court affirmed the judgment.

(People v. Robertson 48 Cal.3d 18 (1989).) Petitioner's petition

for rehearing was denied on April 5, 1989, in an unpublished

order, and the opinion was modiried in minor respects not

affecting the judgment. (Attached as Appendix B to the

petition.) ;

STATEMENT OF FACTS

We set forth the summary of facts from the state court

opinion.

“Pursuant to a waiver of jury trial by the

prosecution and the defense, retrial of the penalty

phase was before the court as trier of fact. The judge

on retrial was not the judge who had presided over the

initial trial.

“Before the court by stipulation of the parties

were transcripts of prior testimony in this action. In

the words we used in Robertson I, supra, 33 Cal.3d 21,

the prior testimony told the following tale.

‘This case arises out of the deaths of two women,

Karen Ann Litzau and Kimberly Gloe, in October 1977.

Shortly after his arrest, defendant gave a detailed,

tape-recorded confession to both homicides, and then

reenacted the killings on film at the scenes of the

crimes. The tape-recorded and filmed confessions were

admitted at trial. Complemented by additional evidence

presented by the prosecution, the record discloses the

following facts.

‘In the early morning hours -- 2 or 3 a.m. -- of

October 20, 1977, defendant stopped and picked up Karen

Litzau as she was hitchhiking on a freeway on-ramp in

San Bernardino. At first defendant only intended to

give Litzau a ride but then, as the two were driving,

decided to have sexual relations with her. When she

refused, he put his right arm around her neck, pressed

a knife to her throat and told her they were going to

have intercourse.

‘After leaving the freeway and driving to a

secluded area on a dirt road, defendant stopped the

car. When Litzau began to call him names -- “crazy, a

son of a bitch, an asshole, everything in the book’ --

defendant began ripping off her clothes. Litzau asked

defendant if he was going to kill her and he said ‘no’.

‘Defendant then placed Litzau on the hood of his

car, intending to have intercourse. When she started

calling him names again, however, he “yanked her off

the car and started stabbing her.”

‘At one point in his confessions, defendant stated

that he only remembered stabbing Litzau twice and that

“[m)y mind went blank. The next thing I knew I was on

—————E

the freeway and I had blood on my hands.” Immediately

thereafter, however, defendant described the incident

in considerable detail, recalling that he had cut

Litzau’s throat and stomach and had stabbed her

repeatedly in the heart, back and vagina. In the

course of his confession, defendant also admitted that

at one point during the stabbing he stopped

momentarily, thinking Litzau was dead, but when he

discovered that she was still alive, he cut her throat.

‘Before leaving the scene, defendant tried to cut

off a breast of Litzau’s lifeless body but failed

because his knife was too dull. He took several pairs

of panties, a cosmetic case and an engraved cigarette

lighter from her suitcase, urinated on the body and

drove away. At different points in his confession

defendant stated alternatively that he decided to kill

Litzau when she “call({ed) [me] names” and “when she

started saying that she was going to tell on me.”

‘Litzau’'s body was found the next morning. An

autopsy revealed more than 170 knife wounds over her

entire body.

‘One night about a week and a half later,

defendant picked up Kimberly Gloe as she was offering

her services as a prostitute on a street in San

Bernardino. After she entered the car, defendant

pulled a knife and drove to a secluded area. He had

brought his knife because he wanted sex. When Gloe

told him that force was not necessary, he put the knife

away. He stopped the car and they engaged in various

sex acts:

‘Thereafter, Gloe told defendant that she had “had

a guy rape me before and I squealed on him, but they

couldn't find him, and I might squeal on you, toc.”

When defendant said “You wouldn't do that, would you?”

she responded, “Yeah, I would.” Gloe then got out of

the car to get her clothas and clean herself off.

‘Defendant grabbed his knife, followed her out of

the car and started stabbing her in the stomach. He

remembered stabbing all over her body, cutting her

throat and stomach, removing her intestines, cutting

off her breasts,’ and stabbing her in the vagina

because “I wanted to do it the same way I did Karen.”

A subsequent autopsy revealed 120 separate stab and

incisional wounds.

‘After Gloe was dead, defendant attempted to break

her legs “[b]y standing and pulling on them and then

again urinated on the body. He left with her address

book and her bra and panties. Asked if he had intended

to kill Gloe when he first picked her up, defendant

stated that “I didn’t have any intention of killing her

until she started saying she was going to snitch on me.

‘A few days after Gloe’s death, a woman who had

seen Gloe get into defendant's car spotted the car

parked in a gas station and notified the police, who

traced the car to defendant and arrested him. At the

time of his arrest, Litzau's cigarette lighter was

found in his pocket. With defendant's consent, the

officers searched his apartment and found Gloe’s

address book, Litzau’s cosmetic case and -- under his

bed -- numerous items of women’s underwear, including

several belonging to each of the victims.’ (Robertson

I, supra, 33 Cal.3d at pp. 31-32.)

“In its case-in-chief, the prosecution set out to

show the penalty of death was appropriate for the

defendant. At the penalty phase of the initial trial

the defense had attempted to demonstrate tat

‘Defendant had s

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his knife between the Litzau and Gloe

homicides.‘ (33 Cal.3d at p. 32, fn. 2.)*

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defendant's culpability was reduced by mental disease

or defect. In évident anticipation of the case it

expected the defense to present here, the prosecution

called several expert witnesses.

"The prosecution experts -- four psychiatrists and

two psychologists -- testified in sum as follows:

defendant had a character or personality disorder,

variously described as 4 passive-aggressive or mixed

character disorder with antisocial features and poor

impulse control; he was emotionally immature and was of

borcerline or low average intelligence; he lacked

insight and was concerned only with hinself; he was

sexually aggressive, received gratification from

inflicting pain and had feelings of inadequacy; and as

a child he had developed slowly and suffered emotional

trauma. The prosecution experts were in conflict as to

whether defendant was a mentally disordered sex

offender; they were unanimous that defendant did not

suffer from any mental disease or defect and was not

affected by posttraumatic stress disorder.

“As further evidence in aggravation of penalty,

the prosecution introduced evidence of defendant's

prior crimes. Ernest F. testified that one night in

1973, when he was a 19-year-old enlisted man in the

Marine Corps, he went out drinking in Yuma, Arizona; at

a bar he met a man who introduced himself as ‘Tex’; he

and ‘Tex’ went barhopping; in the desert outside of

Yuma, ‘Tex’ attacked nim, placing a knife to his neck

and jabbing him with the weapon; ‘Tex' forced him to

submit to oral copulation as he held the knife at his

testicles and groin and jabbed; ‘Tex’ repeatedly

threatened to mutilate him and leave him in the desert

and also threatened to kill him; he offered no

resistance to the attack and soon managed to escape; he

reported the incident to the police, but charges were

never filed. At trial he stated defendant was the man

he had known as ‘Tex’.

“Kim P. testified that one night in 1976 she was

standing in a parking lot at a truck stop in Ontario,

California; a man approached her from behind, put a

knife to her throat and forced her into his automobile;

a citizen's band radio was on; he drove her to a remote

area where he compelled her to disrobe and then cut off

her underpants with his knife; he told her he hated

women and repeatedly said he wae going to kill her; he

beat her about the face, head, and breasts; he violated

her with a Coca-Cola bottle until her vagina bled; he

put lit cigarettes into her vagina and called her a

‘cry baby’ when she complained of pain; he forced her

to orally copulate him; he took a pair of underpants

from her bag, saying they were for a collection he

kept; when the citizen's bank radio crackled, he became

distracted and she fled; he cruised around the area for

five or ten minutes shouting threats that he would kill

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her, but she made good her escape and reported the

incident to the police. She identified defendant as

her assailant.

“Finally, Catherine A. testified that one night in

1977 a man driving a station wagon approached her as

she was walking along a street in San Bernardino; he

offered to pay her for sexual services; she accepted

and entered the vehicle; the man pulled a gun and said,

‘All right, you fucking whore bitch. I've got you

now,’ and drove on; when they arrived at a remote area,

the man told her to get in the back of the station

wagon and remove her clothing; he repeatedly said he

had to kill her; when she asked why, he responded

otherwise she would go to the police; she replied she

would not and generally attempted to mollify him, he

sodomized her until she bled, forced her to orally

copulate him and masturbated in her face; he beat her

breasts and regarded them with obsession; he took her

underpants, saying he wanted them for a collection he

kept; eventually, he told her to get out of the car;

when she did so, he began to drive off, but then turned

the car back; as she hid in a nearby cemetery, he drove

up and down for about 20 minutes and eventually left;

she did not report the incident at that time and

charges were never filed. At trial, she identified

defendant as her assailant. :

“In its case-in-chief, the defense endeavored to

show death was not the appropriate penalty; defendant

had a traumatic childhood, and was mildly mentally

retarded, had low intelligence and poor judgment, and

was in essence a 12-year-old boy in the body of a man;

at the time of the crimes he was affected by

posttraumatic stress disorder as a result of military

service in Viet.nam and by brief reactive psychosis; he

had made an excellent adjustment to incarceration, had

become sincerely religious, and would behave well in

prison and pose no danger to others.

“To support its position, the defense introduced

evidence, through defendant's mother and sister and

expert witnesses, concerning defendant's life before

commission of the crimes in question. The evidence

shows a traumatic birth preceded by a difficult and

prolonged labor; slow development of speech and

walking; parental divorce, followed by kidnap by his

father, ultimate return to his mother, and thereafter

care alternating between a disturbed mother and a

strict grandmother; domination by a cruel and

overbearing sister; and social and academic difficulty

in school. At nine years of age, defendant was

examined by a neurologist, who diagnosed him as mildly

mentally retarded with possible brain damage.

“Defendant served two years in the Job Corps and

then enlisted in the Army. During his eight years

military service he did two tours of duty in Vietman,

totaling almost three years. On his return to the

United States, defendant had difficulty adjusting to

the less structured environment of the peacetime ~

military; he experienced nightmares and suffered from

depression. In 1973 he married a woman 12 years his

senior who had 4 children by a previous marriage. The

union quickly ended in divorce, as defendant was unable

to shoulder responsibility and was closer in mental and

emotional level to the children than to his wife.

“In 1975 defendant attempted to reenlist in the

Army, but was refused. Thirty years old, he returned |

to his mother’s home. He was unable to learn a usable

skill or to hold a job. In 1976 he attacked Kim P. and

was sent to jail. In 1977 he was released. Later that

year he killed Karen Ann Litzau and Kimberly Gloe.

“Dr. Hunt, the neurologist who had examined

defendant at age nine, testified defendant had suffered

organic brain damage and was mildly mentally retarded

and not amenable to treatment; he appeared to suffer

from no specific mental disease, nor was there any

plain psychiatric explanation for his behavior,

although he may have been psychotic during commission

of the extass te question. Dr. Hunt believed defendant

had suffered definite impairment of his mental

functions and therefore should not be sentenced to

death.

“Dr. Robert Postman, a psychologist, testified

defendant was of below average intelligence, was

probably mildly mentally retarded and perhaps had an

antisocial personality disorder; at the time of the

crimes in question he was suffering from brief reactive

psychosis rooted in part in a deep hatred of women.

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Dr. Postman believed defendant would pose no danger to

others in the structured setting of prison and would be

productive there.

“Thomas S. Wulbrecht, director of the Vietnam

Veterans Outreach Center in Riverside, testified about

defendant's experiences in Vietnam and their effects on

his psyche. Wulbrecht stated defendant exhibited

chronic posttraumatic stress disorder overlaid with an

antisocial personality disorder; posttraumatic stress

disorder could lead to a dissociative state wherein the

subject would revert to the ‘survivor mode’ of combat

in an ‘altered state of consciousness’; the commission

of the crimes in question was consistent with behavior

in such a state; it was also consistent with behavior

under brief reactive psychosis.

“As evidence defendant would not pose a danger to

others if he were sentenced to life imprisonment

without possibility of parole, the defense presented

the testimony of three correctional officers and two

fellow inmates of defendant.

“Deputy Sheriff Roger Coyle testified that during

defendant’s confinement in the county rehabilitation

center he conducted himself well and never caused any

disciplinary problems; on one occasion when Deputy

Coyle was attacked by other inmates and lost control of

his gun, at danger to himself defendant pushed the

other inmates again a wall to prevent their obtaining

the gun.

"Sergeant Gerald Riley, formerly a correctional

officer on ‘Death Row’ at San Quentin Prison, testified

defendant adapted readily to incarceration and was ‘an

outstanding prisoner’ and had ‘never been any problem’;

he gets along with everybody well; he follows the

rules; he seems to have the intelligence of a fourth -

or fifth - grader; he is a hard worker and eagerly

10.

does favors for -he staff and other inmates; although

when he arrived on Death Row, he had an obsessive

interest in pornography, he has since started studying

the Bible and become a born-again Christian; as a

result, he has put away pornography and become an even

better prisoner than he had previously been. Sergeant

Riley believed defendant would pose no danger to others

in prison. Norvell Greene, a correctional officer on

Death Row, gave similar testimony.

“Mariney Joseph and William Payton, death row

inmates with defendant, testified to their Bible study

with defendant and the marked change it had produced in

him.” (People v. Robertson 48 Cal.3d 18, 28 (1989).)

SUMMARY OF RESPONDENT’ S ARGUMENT

The petitioner's attack on his waiver of jury at the

penalty phase, based on lack in the record of a showing he knew

of the “deadlock” provision of former Penal Code section 190.4(b)

is ill-founded. Petitioner was represented by two competent

attorneys who expressed sound tactical reasons for the waiver.

Also, petitioner had already experienced a jury trial on the

issue of penalty, had ample opportunity to discuss the

ramifications of his decision with counsel, and was questioned

extensively by the court before it was determined his waiver was

knowing, intelligent and voluntary.

Similarly, the admission of evidence of uncharged

violent crimes at the penalty phase is entirely consistent with

and approved by federal law. Criminal violence which has

occurred at any time during petitioner's life is relevant as a

guide in the determination of the appropriate penalty.

The prosecution is properly not required to bear the

burden of proving death is the appropriate penalty beyond a

reasonable doubt. It is consistent with federal law that neither

side has the burden of proving that one or the other penalty is

proper. Prerequisite to imposition of the death penalty is the

finding of at least one special circumstance to be true, and the

ll.

consideration and weighing of specific aggravating and mitigating

circumstances, as well as independent review by the trial judge

and on automatic appeal.

12.

ARGUMENT

PETITIONER'S WAIVER OF JURY ON PENALTY IS NOT

INVALIDATED DUE TO LACK OF ADVISEMENT AS TO

EFFECT OF A DEADLOCKED JURY WHERE PETITIONER

WAS REPRESENTED BY TWO COMPETENT COUNSEL;

COUNSEL, IN PETITIONER'S PRESENCE, EXPRESSED

SOUND TACTICAL REASONS FOR WAIVER; AND THE

COURT ENGAGED PETITIONER IN EXTENSIVE VOIR

DIRE EXPRESSLY DIRECTED TO DETERMINING

PETITIONER'S WAIVER WAS KNOWING, INTELLIGENT

AND VOLUNTARY .

Relying on the general principle the right to a jury

trial in a criminal case is guaranteed by the Sixth and

Fourteenth Amendments, petitioner argues that this court should

find his jury waiver to be invalid and reverse his sentence.

Petitioner bases his argument on the absence in the record of any

showing petitioner knew of the provision of former Penal Code

section 190.4(b) which mandates the automatic imposition of a

sentence of life without possibility of parole if the jury fails

to decide on sentence to be imposed. Petitioner also argues the

trial court's advisement was misleading. (Pet. p. 7-11)

The Sixth Amendment does not require a jury trial on

the sentencing issue of life or death. “The fact that a capital

sentencing is like a trial in the respects significant to the

Double Jeopardy Clause .. . does not mean that it is like a

trial in respects significant to the Sixth Amendment's guarantee

of a jury trial." Hildwin v. Florida (1989) _U.S.___ in No. 88-

6066 citing Spaziano v Florida 468 U.S. 447, 459 (1984); People

v. Hough (1945) 26 Cal.2d 618, 620-621.)

As California has provided for the imposition of

sentence to be in the discretion of the trial jury, petitioner's

interest in the exercise of the jury's discretion is a liberty

interest that the Fourteenth Amendment preserves against

arbitrary deprivation of the State. (Hicks v. Oklahoma 447 U.S.

343, 347 (1980).)

Petitioner was not arbitrarily deprived of a jury trial

on the penalty. The record reveals a xXnowing, intelligent and

voluntary waiver. Petitioner was represented by two competent

attorneys. The record indicates petitioner had ample opportunity

13.

to discuss the ramifications of his decision with counsel and

counsel joined in petitioner's waiver. (People v. Robertson, 48

Cal.3d 18, 36-38 fn. 4, 5 (1989).) Absent an assertion or

evidence to the contrary, it is presumed competent counsel

informed petitioner of the effect of a jury deadlock. (See

People v. Morgan 492 N.E.2d 1303, 1316 (Ill. 1986); see also

People v. Ashford 520 N.E.2d 332, 343 (Ill. 1988) wherein the

court found no error in the judge’s failure to inform the

defendant that a jury's decision to impose the death penalty must

be unanimous where the record (which included a typewritten jury

waiver form signed by both the defendant and his counsel

indicating the defendant after being fully advised elected to

waive a sentencing jury) left no doubt the defendant made a

knowing and intelligent waiver of a sentencing jury.)

Trial by jury confers burdens as well as benefits, and

the record supports petitioner waived jury trial on the advice of

competent counsel that his interests were safer in the keeping of

the judge rather than the jury. (United States v. Martin 704

F.2d 267, 272 (6th Cir. 1983).) Petitioner's counsel expressed

on the record sound tactical reasons for advising petitioner to

waive a jury. Petitioner's counsel based their decision on

conversations with friends, people in the community, other

attorneys, competent criminal law trial attorneys; a complete

re iew of the facts of the case; conversations with a

psychologist who was an expert on jury selection in death penalty

cases and conversations with petitioner. (People v. Robertson,

supra, 48 Cal.3d 18, 36-37, fn.4.)

It must also be noted petitioner had been convicted in

1978 and the California Supreme Court on automatic appeal

affirmed the judgment of guilt and nine special circumstance

findings but reversed the judgment as to the penalty. Therefore

petitioner had already experienced a jury trial on the issue of

penalty and was familiar with courtroom procedures.

Additionally, prior to accepting the waiver, the cour:

questioned petitioner extensively before determining his waiver

14.

to be knowing, intelligent and voluntary. (People v. Robertson

supra, 48 Cal.3d 18, 37-38, fn.5.)

A technical knowledge of the jury trial is not required

for a voluntary, knowing and intelligent waiver. United States

v. Cochran 770 F.2d. 850, 853 (9th Cir. 1985). The court need

not explain every single conceivable benefit and burden of a jury

waiver at the penalty phase.

California recognizes that Harris v. State 455 A.2d

979, 984-985, which holds a defendant should be advised that if,

after a reasonable time, the jury is unable to agree, the court

shall dismiss the jury and impose a life sentence supports

petitioner's argument that his waiver was ineffective. However,

California finds its reasoning unpersuasive and declines to

follow it. (People v. Robertson, supra, 48 Cal.3d 18, 38, fn.

6.)

Petitioner was not mislead by the court’s advisement

that if he waived a jury trial, the court will act solely. If he

had a jury trial, unanimous agreement of all twelve jurors is

required before a verdict can be returned for either death or

life without possibility of parole. (People v. Robertson, supra,

48 Cal.3d 18, 37, fn.5).) Even in Harris v. State, the court

stated the “additional information [regarding jury deadlock] may

very well be significant”, the statement the jury would have to

be unanimous before imposing death or life imprisonment was not

considered to be misleading. Harris v. State, supra, at p.

984.2 ‘Thus, appellant's waiver of his statutory right to a jury

trial on the penalty was knowing and intelligent. That the court

did not explain the effect of a jury deadlock did not invalidate

petitioner's waiver.

2. Petitioner cites Martinez v.State, (Md. 1987) 522 A.2d

950 as an instance where a jury waiver was invalid because of a

confusing colloquy between the court and the defendant concerning

the voluntariness of the plea. In Martinez, the defendant

answered “yes” when asked whether someone had coerced him into

waiving a jury trial. Therefore the record did not disclose a

voluntary waiver. Unlike Martinez, the record in the instant

case establishes petitioner had not been subjected to either

direct or implied threats, promises or pressure from anyone and

rere | and voluntarily decided to waive jury trial on the

penalty.

15.

UNCHARGED VIOLENT CRIMES MAY BE CONSIDERED AT

THE PENALTY PHASE FOR THE PURPOSE OF

DETERMINING APPROPRIATE PENALTY, AS PROVIDED

BY STATUTE, REGARDLESS WHETHER INDEPENDENT

PROSECUTION FOR THOSE CRIMES WOULD BE BARRED

BY THE STATUTE OF LIMITATIONS .

Petitioner argues that this court should address the

issue of whether California may constitutionally permit the

introduction of evidence of unadjudicated violent offenses for

the purpose of capital cases. (Pet. 12-16.) He claims that such

practice is inconsistent with due process and with the

requirement of reliability in capital sentencing.

The introduction of this evidence does not violate

petitioner's federal constitutional rights. First, petitioner

did not object to the evidence of other violent crimes on the

basis of the statute of limitations. Thus the issue should be

deemed waived (See People v. Haskett 30 Cal.3d 841, 860 (1982))

and that waiver precludes relief from the federal courts. (£nge

v. Issac 456 U.S. 107, 129 (1982).) More importantly,

existing state procedures ensure that a capital defendant's due

process rights are protected at a capital penalty trial, and

introduction of violent criminal activity enhances the

reliability of the penalty decision.

Relying on the general principle that statutes of

limitation tend to insure fairness and predictability with

respect to potential criminal prosecution, (United States v.

Marion 404 U.S. 307, 322 (1971); Toussie v. United States 397

U.S. 112, 114 (1970)), petitioner argues that if the statute of

limitations would bar a separate prosecution for an uncharged

act, then evidence of that act may not be received at a capital

penalty trial. His argument ignores that there is no limitation

period in Califo.nia to the prosecution of a capital murder, nor

any limitation on the evidence of uncharged violent criminal

activity which may be admitted at the penalty phase of a capital

trial. Petitioner's argument similarly ignores that there are

basic protections in California which ensure a capital trial will

16.

| le

be fair within the meaning of the Due Process Clause of the

Fourteenth Amendment.

. This Court has recognized that states should enjoy

broad discretion in deciding which negative aspects of the

defendant's character and background are relevant to sentencing

considerations. (See Estelle v. Smith 451 U.S. 454, 472-473

(1981); Jurek v. Texas 428 U.S. 262, 276 (1976).)

In both Gregg v. Georgia 428 U.S. 153, 165-166 fn. 9

(1976) and Proffit v. Florida 428 U.S. 242, 248-249 fn. 6 (1976),

capital punishment statutes were approved by this Court where the

statutes at issue contemplated the consideration of other crimes

evidence in connection with penalty.

California's death penalty statute permits introduction

of unadjudicated violent criminal activity at the penalty phase.

Former Penal Code section 190.3, which is identical to present

law in relevant part (See generally People v. Phillips 41 Cal.3d

29, 69-72 (1985)), permitted the presentation of penalty phase

evidence of other criminal activity by the defendant which

involved the use or attempted use of force or violence and

provided that criminal activity does not require a conviction.

The penalty jury may consider criminal violence which has

occurred at any time in the defendant's life. (People v.

Balderas, 41 Cal.3d 144 (1985).)

At petitioner's penalty trial Ernest Freudemann and

Catherine Ayala properly testified to petitioner's attacks upon

them. In neither instance had charges been filed against them.

The California Supreme Court has long held that the state

statutes of limitations “does not prohibit the introduction of

evidence of prior criminal acts for which the prosecution would

be barred by the statute of limitations.” (People v. Terry, 70

Cal.2d 410, 422 (1969); see also People v. Jennings, 46 Cal.3d at

980-983 (1988).)

By introducing evidence of other crimes at the penalty

phase, the state does not seek to prosecute and punish the

defendant for those acts. Rather, it serves as a guide in the

17.

determination of the appropriate penalty for the present act --

the murder(s) for which the defendant is being prosecuted and

punished. The evidence is not introduced in order to impose a

penalty for those prior acts, but rather as evidence of the

circumstances surrounding the present crime, of the defendant's

background and history, and any of the facts in aggravation or

mitigation of the penalty for the present crime. The fact that

the prosecution for the other crimes may have been barred by the

statute of limitations is immaterial. (People v. Terry, supra,

70 Cal.2d at 422.)

Furthermore, although California does not limit the

time period for which uncharged criminal acts may be shown ata

penalty trial, it does afford basic procedural protections to the

capital defendant regarding the use of such evidence. The

evidence of uncharged acts is limited to crimes involving the use

or threat to use violence. (People v. Gates 43 Cal.3d 1168,

1202 (1987).) The conduct underlying the Freudeman and Ayala

attacks clearly fall within this category i.e., rape, kidnapping,

forcible oral copulation, and forcible sodomy.

The reliability requirement of the Eighth amendment is

also satisfied by the California rule that uncharged violent acts

must be proved beyond a reasonable doubt. (People v. Robertson,

33 Cal.3d 21, 53-55 (1982).) Therefore, the introduction and

limited use of unadjudicated criminal acts as aggravating factors

does not deprive petitioner of any constitutional right.

To the extent other states’ courts have reached a

contrary conclusion, respondent submits one must look to the

basis of those decisions before concluding without further

analysis that their position is mandated by the federal

constitution. Por instance, both State v. Bobo 727 S.W. 2d 945,

954 (Tenn. 1987), cert. denied, _U.S. __, 98 L.Ed 2d 155, and

State v. Bartholomew 683 P.2d 1079, 1085 (Wash. 1984), which

petitioner cites (Pet. p. 15), were explicitly decided on the

basis of their respective state constitutions and thus have no

relevance to the law of California. Clearly, no reliance upon

18.

independent state grounds, except within the context of the legal

history and procedure of a particular state, can have valid

meaning or authority with respect to the law of some other state.

Similarly distinguishable is State v. McCormick 397

N.E. 2d 276 (1979). In McCormick, the provision which was

stricken did not relate to the discretionary aggravating and

mitigating process, but operated as the functional equivalent of

California's “special circumstance.” That is, the very

suitability of a particular defendant as 4 potential candidate

for capital punishment was established by the proof of a prior

murder. The situation is significantly different from the

California procedure by which aggravation and mitigation come to

be considered. Before that weighing is undertaken, the defendant

will have already undergone a formal hearing to determine whether

as a general matter, the particular murder(s) committed was

(were) of the kind for which the death penalty might be

appropriate punishment.

Thus, far from decreasing the reliability in the

determination that death is appropriate, the admission of

uncharged violent criminal activity adds to the reliability by

insuring receipt of a Complete and accurate picture of

petitioner's background and character. The use of unadjudicated

acts within the strict limitations imposed by California courts

does not violate petitioner's constitutional rights.

19.

Ill

THERE IS NO CONSTITUTIONAL OR STATUTORY

REQUIREMENT THAT A BURDEN OF PROOF BE

ALLOCATED AT THE PENALTY PHASE, AS THE 1977

DEATH PENALTY LAW MEETS CONSTITUTIONAL

STANDARDS OF NARROW DEATH ELIGIBILITY,

INDIVIDUALIZED SENTENCING, AND APPELLATE

OVERS] SHT

Petitioner argues not only did the court fail to

require the prosecution to prove that death was appropriate

beyond a reasonable doubt, it failed to enforce any requirement

at all. Petitioner argues since the sentencer considers the

underlying crime and special circumstance findings as

aggravation, the result is a procedure skewed toward death.

(Pet. p. 16-18)

A death penalty law avoids the Eighth Amendment's

proscription of “arbitrary” sentencing procedures if it narrows

the class of death-eligible persons, then provides for an

individualized penalty determination at the penalty and

sentencing stages. (Pulley v. Harris 465 U.S. 37, 53-54 (1984);

California v. Ramos 463 U.S. 992, 1008 (1983); Zant v. Stephens

462 U.S. 862, 876-880 (1983).)

Neither side has the burden of proving that one or the

other penalty is the proper one at the trial on the issue of

penalty. (People v. Bandhauer 66 Cal.2d 524, 531 (1967).)

That does not mean the death sentence will be

arbitrarily imposed, or that the procedure is skewed towards

death. Petitioner has already been convicted of the wilful,

premeditated and deliberate first degree murder of two women, and

special circumstances which include robbery, kidnap, rape, and

the infliction of torture have been found to be true. It is

appropriate the circumstances of the offense be considered in the

penalty phase, as appellant has already been convicted of a death

penalty offense.

Prerequisite to imposition of the death penalty the

trier of fact must find beyond a reasonable doubt at least one

special circumstance and must consider, be guided by and weigh

specific aggravating and mitigating circumstances. Also, there is

—— ee ee. oe ae or eee eee ee ee

independent review of each death judgment both by the trial judge

and on automatic appeal. (People v. Jackson 28 Cal.3d 264, 315-

318 (1980); People v. Frierson 25 Cal.3d 142, 176-184 (1979);

People v. Rodriguez 42 Cal.3d 730, 777 (1986).)

The 1977 death penalty lhw meets constitutional

standards of narrow death eligibility, individualized sentencing,

and appellate oversight. (Pulley v. Harris 465 U.S. 37, 51-53

(1984).)

There is no constitutional or statutory requirement

that a burden of proof be allocated at the penalty phase nor that

the People must prove the appropriateness of the death penalty

beyond a reasonable doubt. (See Harris v. Pulley 692 F.2d 1189,

1195 (9th Cir. 1982); Proffit v. Florida, supra, 428 U.S. 242;

Barclay v. Florida 463 U.S. 939 (1973).)

. a

CONCLUSION

For the foregoing reasons, respondent respectfully

requests the petition for writ of certiorari be denied.

DATED: July 21, 1989

RICHARD B. IGLEHART, Chief Assistant

General

HARLEY D. MAYFIELD,

Assistant Attorney General

RUDOLF CORNONA, JR., Supervising

Deputy Attorney General

2 fon, “4, CALE: a

MAXINE P. CUTLER,

Deputy Attorney General

Attorneys for Respondent

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APPENDIX

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18 Prorpit » Roni atson

48 Cal 3d 18, — Cal Rptr —, — Pld — [Ped 1989)

[No 8004608. Crm. No. 23538. Feb. 23, 1989)

THE PEOPLE, Plaintiff and Respondent, v.

ANDREW EDWARD ROBERTSON, Defendant and Appellant.

Susimeary

Defendant was found guilty of two first degree murders, and nine special

circumstances were found true The jury fined the penalty at death On

appeal, the yudement as to guilt and the special circumstance findings were

affirmed, but the judgment as to penalty was reversed. After retrial to the

bench, the tmal court fixed the penalty at death and entered judgment

accordingly. (Superior Court of Sun Bernardino County, No. CR 34455, .

Roy E. Chapman, Judge.)

The Supreme Court affirmed the judgment. It held that the tnal court did

not lack jumsdiction to determine the issue of penalty under the 1977 death

penalty law (former Pen. Code, § 190 et seq.) pursuant to a waiver of jury

tnal by the defense and prosecution. The court also held that defendant's

waiser of jury tnal was not mvalidated by the trial court's failure to inform

him of the effect of a jury deadlock under former § 190 et seq, and the tnal

cour, did not err in tailing to advise defendant and obtain on-the-record

warsers of his constitutional nghts to a jury trial, confrontation and cross-

examination, and ac.inst self-incrimination before defendant waived jury

tnal and stspulated that the court could read and corider the former

testimony of specificd witnesses. Two pror sexus!l attacks by defendant

were properly considered as other criminal activity under former Pen.

Code. § 190.3, even though prosecution for the attacks was barred by the

statute of limitations, the coun held, and evidenve of the two attacks was

not unrchable, notwithstanding that cach was established by only a single

witness. Further, the court held, the prosecution gave notice “prior to tnal™

within the meaning of former § 190.3 by informine the defense more than

three months defore the retnal commenced. that 1 would miraduce evidence

of the two attacks, even though it did not give notice of such intent prior to

the onginal trial. The court held that a capital tnal must be held under the

death penalty law in effect at the time the capital offenses were committed,

and thus the tnal court did not err in considering as factors im aggravation,

as permitted by former § 190.3, that at the time of the offenses, defendant

@as on prodanon for a previous offense and was undergoing therapy. Final-

, Jae See

Avis?

Prorit » Rosi rrso~n 19

48 Cal dd 1k — Cal Rpir —, — Pld — [Feb 1989]

ly, the court held, the trial court did not fail to consider evidence of defend-

ant’s lack of future dangerousness in prison, defendant's mental age, and the

effects of his military service in Vietnam, and defendant validly waned his

Presence at the penalty reduction heanng While such warner did not extend

to imposition of sentence. defendant's absence at that stage of the proceed-

ings constituted harmless error. (Opimon by Panel, J., with Lucas. C. J.,

and Arguclics, Eagleson and Kaufman, JJ, concurring Separate dissenting

opinion by Mosk, J., with Broussard, J., concurnng.)

HravvoTes

Classified to California Digest of Official Reports, 3d Series

(1) Homicide § 2—Jurisdiction of Court to Decide Penalty.—In a prose-

cution for murder, the trial court did not lack jurisdiction to decide,

pursuant to a waiver of jury trial by the defense and prosecution, the

issue Of penalty under the 1977 death penalty law (former Pen. Code.

§ 190 et seq), even though a jury had decided the issue of guilt.

Inherent in subject matter jurisdiction is the power to inquire into the

facts, apply the law. and declare the punishment, and neither former

Pen. Code. § 190.4, subd (b) (defendant who wares jury tna! at guilt

phase has right to jury trial at penalty phase), nor former Pen. Code,

§ 190.4, subd. (c) (defendant found guilty by jury is entitled to have

remaining issues decided by same jury), denies the cour junmsdiction

to decide the issue of penalty under such circumstances.

(Qa, 2b) Jury § 19—Right to Jury Trial and Waiver—Duty of Judge and

Counscl—Ilomicide Case—Advisements as to Effect of Deadlock.—

In the penalty phase of a prosecution for murder, defendant's waiver

of a jury trial was not mvalidated by the tnal court's failure to inform

defendant of the effect of a yury deadlock under the 1977 death penalty

law (former Pen. Code, § 190 et seq.), where the court did inform him

that if he had a jury trial, a unanimous verdict would be required.

Defendant was represented by two apparently competent counsel who

over the course of several days discussed with him at length the conse-

quences and nature of his proposed waiver. Neither was the waiver

’ invalidated by the trial court's failure to inform defendant that it

would automatically review any verdict of death returned by @ jury.

(3) Jury § 8—Right to Jury Trial and Waiver—Criminal Cases—Penal-

ty.—A defendant duc, not have a constitutional night to jury tnal on

penalty. However, where @ state has provided for the mmpowtion of

a —— =) =

20 Piort » Rosiaison

48 Cal 3d 18, — Cal Rowe —. — Pld — [hed 1989)

enminal punishment in the discretion of the tral jury, the defendant

has 8 substantial and legitimate expectation that he will be deprived of

his liberty only to the catent determined by the jury in the exércise of

its Statutory discretion, and that liberty interest is one that US.

Const., 14th Amend., preserves against arbitrary deprivation by the

state.

(42-44) Homicide § 72—Waiver of Jury Trial on Penalty and Submission

on Basis of Former Testimony.—In the penalty phase of a prosecution

for murder, the trial court did not err im failing to advive defendant

and obtain on-the-record wanvers of his constitutional nghts to a jury

tral. to confrontation and cross-examination, and against self-incrimi-

nation, before defendant waived jury tral and stipulated that the court

could read and consider the former tesuumony of specified witnesses

with the understanding that either side could call any of the witnesses

for additional testimony Defendant had no constitutional nght to jury

tnal and his waiver of the statutory mght was not a consequence of his

stipulation, but rather preceded it. Further, the stipulation was not 8

submission within the meaning of the rule requiring an advisement of

constitutional mghts and a personal waiver of those nghts as a prereq-

uisite to a Submission that 1s tantamount to a guilty pics Even if t was

8 submission, any error was harmless, since absent the stipulation all

or most of the same witnesses would have given live testimony to the

same effect as their previous testimony.

(S) Criminal Law § 167—Pica—Guilty—Waiver of Rights—Constitu-

tiona! Requirements.—W hen a defendant agrees to a submission pro-

cedure, such as a guilty plea or a submission on the preliminary

heanng transcript, by virtue of which he surrenders one or more of

three nghts Yury tnal. confrontation, and privilege against self-incnm-

ination), the record must reflect that he was advised of and personally

waived the appheanie mght or nghts This requirement 1s constitution-

ally compelied when the submission 1s a guilty plea or tantamount to 8

guilty pica. However, when the submission ts in fact not tantamount

to a guilty plea, the advisements and waivers are required only as 8

matter of judicial policy.

[Court's duty to advise or admonish accused as to consequences of

plea of guilty, of to determine that he is advised thereof, note, 97

A.L.R.24 $49. See also Cal.Jur.3d (Rev), Crminal Law, § 2816 et seq.;

Am.Jur.24, Cnminal Law, § 473 et seq.)

(6) Criminal Law § 173—Pica—Submission on Preliminary Transcript—

W aivers—Records—“Submission."—A_ “submesion.” within the

Peorie » Row etson 21

48 Cal 36 18, — Cal Rew —, — Pld — [Fed 1989)

meaning of the rule requiring an adsivement of constitutional mghts

anda ested warver of those nghts as 4 prerequisite to a submission,

occurs when a defendant gives up his mght to jury tnal and, unless

otherwise specified, the right to prevent additional evidence in his own

defense, and agrees the court can decide his case on the basis of por

proceedings. Although the parties may reserve the nght to present

additional evidence, the essential components of the submission are

waiver of a jury trial and, with respect to the witnesses who —

the pnor proceedings, waiver of the right to confrontation in '

present proveeding. When the submiysion ts & “slow plea” or “tanta-

mount to 2 pica of guilty.” the defendant also gives up his privilege

against sell-incrimination.

(7) Criminal Law § 172—Pica—Submission on Preliminary Transcript—

of Counsel's Tactical Decisions. —Tral counsel, im the guise of

cana choice, cannot deprive a defendant of his basic constitutional

rights, and thus the rule requiring an advisement of constitutions!

nights and a personal waiver of thove nghis as @ prerequisite tos

submission applies to tactical decisions that implicate those mghts.

(8) Humicide § 101—Punishment—Death Penalty—Aggravating and Mi-

‘actors—Other Criminal Activity—Unadjudicated Con-

yap penalty phase of a prosecution for murder, the admis-

sion of prior unadyucdicated incidents of crmunal activity, as permitted

by the 1977 death penalty law (former Pen. Code, § 190 et seq.) did

not violate defendant's due process mghts.

(9) Homicide § 101—Punishment—Death Penalty—Ageravating and Mi-

tigating Factors—Other Criminal Activity—W here Time-barred.—In

the penalty phase of a prosecution for murder, two pnor sexual at-

tacks by defendant were properly considered as other criminal activity

under former Pen. Code, § 190.3, even though prosecution for the

attacks was barred by the statute of limitations. To exclude violent

enminal behavior simply because its prosecution 1s time-barred «ould

§ 104—Appcal—Preserving pe n=

graveting and Mitigating }'actory—Halancing of Probative Value

Prejudicial Effect.—In the penalty phase of » prosecuuon for murder,

Priori +» Romarso~n

48 Cal WIR — Col Rptr —, — P2U — [Feb tone]

defendant waived his claim that the tral court should have made an

eaplicnt on-the-record finding that the probative value of evidence

regarding two of defendant's pnor sexual attacks outwenhed tts preyu-

dicial effect, where defendant objected to admission of the evidence on

the grounds of Evid. Code. § 352 (prejudicial effect of evidence out-

weighs its probative value). where the court overruled the objection

but granted defendant icave to move to sirke the evidence at 8 later

time, and where defendant failed to make @ subsequent motion to

stnke and eapressiy withdrew his objection to the evidence.

Homicide § 101—Punishment—Death Penalty—Agcravating and

Mitigating Factors—Other Criminal Actisity —Diseretion of Court to

Exclude.—in the penalty phase of a capital tral te which the 1977

death penalty law (former I’en. Code. § 190 et seq.) 1s applicable, the

tna! court does not have discretion under Evid. Code, § 352 (prejudi-

cial effect of evidence outweighs its probative valuc), to exclude evi-

dence of unadjudicated criminal activity mvolving violence. Such evi-

dence 1s expressly made admissible by former Pen. Code, § 190.3.

(12a, 12b) Homicide § 101—Punishment—Death Penalty —Ageravating

and Mitigating Factors—Other Criminal Activity—Reliubility of Ev-

idence.—In the penalty phase of a prosecution for murder, exidence of

Iwo previous attacks by defendant was not unreliable, notwithstanding

that each was established by only a single witness. Othet-cnmes evi-

dence may be considered only if the tner of fact determines that the

other cnmes have been proven beyond a reasonable dou, and here a

rational trier of fact could have found beyond a reasonable doubt that

defendant had used force or threat of force to compel the two victims

to commit oral copulation in violation of Pen. Code, § 288a, subd. (c).

Criminal Law § 621—Appcllate Rev iew—Scope—Sufficiency of Evi-

dence—Reasonable Doubt Standard.—In reviewing the sufficiency of

the evidence, the appellate court's task 1s to determine whether, afier

‘ewing the evidence in the hight most favorable to the prosecution,

any rational tner of fact could have found the essential elements of the

emme beyond a reasonable doubt.

(14a, 14b) Criminal Law § 101—Punishment—Death Penalty—Aggra

vating and Mitigating Factors—Notice of Evidence to Be Intro-

éuced.— Where defendant's death sentence was reversed on appeal

and retrial as to penalty ordered, the prosecution gave notice “pnor

tnal,” within the meaning of former Pen. Code. § 190.3, by informing

the defense more than three months before the retnal commenced that

Mt would mmiroduce evidence reluting to two prnor attacks by defendant,

Prorit » Roni KTSON

48 Cal 6 18, — Cal Rper —, — P2d — [Fee 1929]

even though it did not give notice of such intent prior to the original

trial. Where the question of notice arives in the contest of a second

trial—ie., a “retnal”—following a successful appeal, “tnal” must

reasonably be construed to mean the judicial proceeding in which the

matter in issue 1s again examined and resolved.

(15) Words, Phrases, and Maxims—Trial.—The word “trial” refers

broadly to the formal examination of the matter in tssue in a judicial

tribunal for the purpose of determining such issue.

(16) Criminal Law § 29—Former Jeopardy —Effect of Reversal on Ap-

peal—Ageravating Evidence Not Used in First Trial.— Where defend-

ant’s death sentence was reversed on appeal and he way retried as to

penalty, double jeopardy principles did not preclude use of evidence of

prior attacks by defendant that the prosecution had failed to use at the

first tral. The double jeopardy prohibition has no bearing on the kind

or quantity of evidence that may be introduced in successive tnals of

an issue, nor does wt bar the use of new evidence.

(17) Homicide § 101—Punishment—Death Penalty—Ageravating and

Mitigating Factors—Other Criminal Activity—Unadjudicated Con-

duct—Es idence.—In the penalty phase of a prosecution for murder, in

which the prosecution called a victum of a previous attack by defend-

ant to testify us to the circumstance of the attack, use of such testimo-

ny did not amount to wmpermissible relitigation of defendant's convic-

tion, pursuant to a guilty plea, of Pen. Code, § 288a (oral copulation

by use of force or violence) oF the collateral charges that were dis-

missed at the ume of the plea Both the 1977 and 1978 death penalty

laws (former Pen. Code, § 190 et seq: Pen. Code, § 190.1 et seq.)

permit introduction of all evidence of violent crimes, whether or not

they resulted in a conviction, except those of which the defendant has

been acquitted.

(18) Homicide § 101—Punishment—Death Penalty—Aaggravating and

Mitigating Factors—Defendant's Statements to Psychiatrists.—In

the penalty phase of a prosecution for murder, the trial court did not

err in allowing the admission in the prosecution's case-1. chief of

expert testumony relating several statements defendant made in the

course of psychiatne and psychological interviews. The staternents—

in particular, given the nature of the offenses, those relating to his

ate penalty. Thus the introduction of the evidence was not error ender

the 1977 death penalty law (/ormer Pen. Code, § 190 et seq.). Further,

au Priori » Rom atson

48 Cal 3d 18. — Cal Rpir —, — Pld — [heh 19K9]

although the statements were contradicted by defendant and others,

the statements were not offered for truth, and any contradiction went

not to their admissibility but to the weight given the eaperts’ opinions.

(19) Homicide § 101—Punishment—Death Penalty—Statement as to Ap-

plicable Law.—In the penalty phase of a prosecution for murder, the

tnal court did not fail to make clear what legal pringiples it would

apply in its determination of penalty, where it expressly stated that it

would apply the 1977 death penalty law (former Pen. Code. § 190 et

seq), eacept as to al! points on which the current Pen. Code, § 190.3,

was more favorable to defendant. As these statutes sufficiently set

forth the procedures to be followed, the factors to consider and the

manner in which the sentencing decision 1s to be made, designation of

correlative instructions was not necessary to permit meaningful appel-

late review. Further, the trial court did not err, when rendemng sen-

tence, in failing to specify which, if any, of the more fas orable provi-

sions of the new statute it had apphed and in thus possibly denying

defendant the apparent mandate under that statute of a life sentence

when mitigation outweighs aggravation; the court had already ea-

pressly stated that it would be bound by the mandate.

(20) Homicide § 101—Punishment—Death Penalty

i y—Absence of Miti-

gating Factor as Aggravating Factor.—In the penalty phase of a pros-

ecution for murder, the tral court did not improperly consider the

absence of mitigating factors as factors in aggravation Viewed in

context, the court's reference to the absence of evidence supportive of

former Pen. Code, § 190.3, subd. (c) (offense committed under ex-

treme mental or emotional disturbance), and former Pen. Code, —

§ 190.3, subd. (g) (inability to appreciate criminality or conform con- .

os to Sannin Ee Soe te ee

tatemen defendant failed in his attempt potentially

significant mitigating circumstances. gg

(21) Homicide § 101—Punishment—Death

} Penalty—Aggravating and

Mitiguting Factors—Applicability of Law in Effcct at Time of

Offense.—A capital tnal must be held under the death penalty law in

effect at the time the capital offenses were committed. Thus, in the

penalty phase of a prosecution for murder, the trial court did not err

to comeing so Ganesein Aimar, ae Sunes ee ee

h penalty law (former Pen. Code, § 190 et seq.), that at the time of

the offense defendant was on probation for » previous offense and was

actually undergoing therapy. even though under the current law the

prosecution's case for aggravation is limited to evidence relevant to

Prorie v. Rosretson 2s

48 Cal 3d 18. — Cal Ror —, — P 2d — [Fed 1989)

(23)

listed statutory factors, where at the time defendant committed the

murders, the 1977 law was in effect.

Homicide § 101—Punishment—Death Penalty—Aggrevating and

Mitigating Factors—Multiple Use.—In the penalty phase of a prose-

cution for murder, the trial court did not err in using three of defend-

ant’s previous violent criminal acts for two distinct purposes, where

after reciting the pnor offenses as criminal activity under former Pen.

Code, § 190.3, subd. (b), it then considered them under former Pen.

Code, § 190.3, subd. (c) (offenses committed under influence of ex-

treme mental or emotional disturbance), evaluating the circumstances

surrounding the current offenses and defendant's criminal history to

conclude that defendant was not acting under extreme mental or emo-

tional disturbance in commutting the cu:rent offenses.

Homicide § 101—Punishment—Death Penalty—Aggravating and

Mitigating Factors—Sympathy.—In the penalty phase of a prosecu-

tion for murder, the record did not support an inference that the tnal

court did not understand that sympathy could form the basis of a life

sentence, where the court expressly noted that it could properly con-

sider sympathy or pity for defendant in determining whether or not to

show mercy and spare defendant from execution, notwithstanding

that in ruling on defendant's penalty-reduction application the court

subsequently stated that, alifiough « recognized and considered sym-

pathy factors raised by the evidence, it was bound to review the evi-

dence and consider and take into account and be guided by statutory

aggravating and mitigating circumstances.

(248, 24b) Homicide § 101—Punishment—Death Penalty—Aggravating

and Mitigating Factors—Lack of Future Dangerousness.—In the

penalty phase of a prosecution for murder, the tnal court did not fail

to consider evidence of defendant's lack of future dangerousness in

pmson in determining the appropnate penalty, where the court recited

defendant's lack of future dangerousness as a sympathy factor and

expressly stated that it considered that defendant would not pose a

threat to society so long as he was confined in prison. Even if the court

had failed to consider such evidence, however, the error was harmless,

since against evidence that defendant co.nmitted two brutal mutila-

tion-murders for the purpose of his own gratification in inflicting pain

and discomfort, the only mitigating evidence was that defendant was

mildly mentally retarded, emotionally immature, suffered from per-

sonality disorders, had impaired judgment, and had «a troubled

-~*+

SOF NS LT Tt

or ee

Prort « Rom aTson

48 Cal 3d 18. — Cal Row. —, — Pld — [Fem 1989)

Homicide § 101—Punishmeni—Decath Penalty-—Aggrevating and

Mitigating Fectors—t.aclusion of Mitigating Evidence.—Jusi as 8

state may not by statute preclude the sentencer from considering any

muitigatyng factor, neither may the sentencer refuse to consider, as 8

matter of law, any relevant mitigating evidence. The sentencer may

determine the weight to be given relevant mitigating evidence. But it

ma) not give it no weight by excluding such evidence from consider-

ation.

Homicide § 101—Punishment—Death Penalty—Aggravating and

Mitigating Fector,x—Defendant’s Mental Age end Military Ser-

vice.—In the penalty phase of a prosecution for murder, the trial court

did not fail to consider defendsnt’s mental age and the effects of his

military service in Vietnam. The court considered defendant's age-

related evidence but determined that it did not rive to a sufficient level

of persuasiveness to establish a mitigating circumstance. Although the

court did not specifically refer 10 paychological effects arising out of

the service in Vietnam, the court found that defendant was not acting

under posttraumatic stress disorder, and in considering sympathy fac-

tors the court notcd the historical background relating to

provided by his mother and sister and vanous expert witnesses, which

information necessarily included defendant's military service.

Homicide § 101—Punishment—Death Penalty —Burden of Proof.—

In the penalty phase of a prosecution for murder. the trial court did

not err in ruling that neither side had the burden of proof. To say that

neither side bears the burden is not to incur the msk the death sentence

will be arbitrarily imposed Prerequisite to imposition of that penalty

the tner of fact must find true beyond 2 reasonable doubt at least one

special circumstance and must consider, be guided by and weigh spe-

cic aggravating and mitigating circumstances.

Presence.—A capital defendant may waive his nght to be present at

enucal stages of trial. Thus, in the penalty phase of » prosecution for

Prorit » RosceTso~

48 Cal 6 18 — Col Ree —. = Pid — [Fed 198°)

coun , had twice

had heard defendant's expression of remorse and

cononenet encetel and at length over the evidence presented and the

arguments made

Homicide , of R by Capital Defendant.—A capital

1 defendant ee eas wae represent himself im pro. Per. he

phase consent of counsel, plead guilty to the under

lying Pec tery tpt ese special circumstances. he may testify to

his preference for a sentence of death, and he need not participate. in

the presentation of the defense at the penalty phase.

7 ee of ae for murdcr based ver = ae

In the penalty phase of 3 pr r one pe

ders of two young Somen, the cum

porary veneers whee errors, none of which by stself required rever-

pa yoo not prejudicial. where the tal court did not find determina-

tion of death as the appropriate penalty to be a difficult or extremely

close question.

Homicide —Punishment—Death Penalty—1977 Lew—Equal

wa ee ae faslure of the 1977 death penalty law (former oe

Code, § 190 et seq) to impose & beyond-a-rcasonadle-doudt sta

Homicide —Punishment—Death Penalty —Disproportionslity

eR of ae vethng 8 sentence was not disproportionate ———

for defendant, who had brutally mutilated snd murdered — —

women in order to obtain gratification in inflicting pain and gene

fort, notwithstanding defendant's mental and emouonal problems

his difficult childhood.

Couns? t

a he

imot J. Foley and Gail R. Weinheimer, under appointment By t

Supseme Court, for Defendant and Appellant

Peore » Rostatso~n

48 Cal.36 18, — Col Kpir —, — P2d — [Fed 1969)

Ovri~ion

PANELLI, J.—This is an automatic appeal from a judgment of death (Cal.

Const., art. V1, § 11; Pen. Code, § 1239, subd (b)) imposed under the 1977

death penalty law (former Pen. Code. §§ 190-190 6, Stats. 1977, ch. 316, §§

4-14, pp. 12$0-1262, repealed by Prop. 7, Gen. Elec. (Nov. 7, 1978))' follow-

ing retnal of the issue of penalty after an initial judgment of death was

reversed in People v. Robertson (1982) 33 Cal.3d 21 (188 Cal. Rptr. 77, 655

P.2d 279] (hereinafter Robertson 1).

After trial a jury found defendant Andrew Edward Robertson guilty of

two first degree murders and found true mine charged special circum-

stances: The jury fixed the penalty at death: the court entered yudgment in

accordance with the jury's verdicts and findings On appeal we affirmed the

judgment of guilt and the special circumstance findings, but reversed the

judgment as to penaliy. (Robertson J, supra, 33 Cal.3d at p. 60.)

After retnal to the bench, the court fixed the penalty at death and entered

judgment accordingly. This appeal followed.

As will appear, we affirm the judgment.

1, Facts

Pursuant to a waiver of jury trial by the prosecution and the defense,

retrial of the penalty phase was before the court as trier of fact. The judge

on retna) was not the judge who had presided over the initial tral.

Before the court by stipulation of the parties were transcripts of prior

testimony in this action. In the words we used in Robertson J. supra. 33

Cal.3d 21, the prior testimony told the following tale.

“This case arises out of the deaths of two women, Karen Ann Litzav and

Kimberly Gloe, in October 1977. Shortly after his arrest, defendant gave 8

detailed, tape-recorded confession to both homicides, and then reenacted

the killings on film at the scenes of the crmes. The tape-recorded and filmed

confessions were admitted at tnal. Complemented by additional evidence

presented by the prosecution, the record discloses the following facts.

eere committed dunng the commrwca of attempted commnsion of robbery (former

subs (ch Mut)). and involved the infliction of torure (former § 190.2, subd. (cK4)).

Pror_e » RostrtTso~n 29

48 Cal 36 18. — Cal Rp —, — Pld — [Fed 1989)

“In the early morning hours—2 or 3 a.m —of October 20, 1977, defend-

ant stopped and picked up Karen Litzau as she was hitchhiking on a@

freeway on-ramp in San Bernardino. At first defendant only intended to

give Litzau a mde but then, as the two were drnving, decided to have sexual

relations with her. When she refused, he put his mght arm around her neck,

pressed a knife to her throat and told her they were going to have

intercourse.

“After leaving the freeway and driving to a secluded area on a dirt road.

defendant stopped the car. When Litzau began to call him names—"crazy,

a son of a bitch, an asshole, everything in the book’"—defendant began

ripping off her clothes. Litzau asked defendant if he was going to kill her

and he said ‘no.’

“Defendant then placed Litzau on the hood of his car, intending to have

intercourse. When she started calling him names again, however, he

‘yanked her off the car and started stabbing her.”

“At one point in his confessions, defendant stated that he only remem-

bered stabbing Litzau twice and that ‘[m}) mind went blank. The next thing

I knew I was on the freeway and I had blood on my hands.’ Immediately

thereafter, however, defendant descnbed the incident in considerable detail,

recalling that he kud cut Litzau's throat and stomach and had stabbed her

repeated!) in the heart, back and vagina. In the course of his confession,

defendant also admitted that at one point dumng the stabbing he stopped

momentarily, thinking Litzau was dead, but when he discovered that she

was still alive, he cut her throat.

“Before leaving the scene, defendant tned to cut off a breast of Litzau's

lifeless body but failed because his knife was too dull. He took several pairs

of panties, a cosmetic case and an engraved cigarette lighter from her

suitcase, urinated on the body and drove away. At different points in his

confession defendant stated alternatively that he decided to kill Litzau when

she ‘call[cd) (me) names’ and ‘when she started saying that she was going to

tell on me."

“Litzau's body was found the neat morni..g. An autopsy revealed more

than 170 knife wounds over her entire body.

“One night about a week and a half later, defendant picked up Kimberly

Gloe as she was offering her services as @ prostitute on @ street in San

Bernardino Afier she entered the car, defendant pulled a knife and drove to

a secluded area. He had brought hm kasfe because he wanted sea. When

» Prorit » Romi eTson

48 Cal 3d 18 — Cal Rote —, — Pld — [Feh 1989)

Gloe told him that force was not necessary, he put the knife away. He

stopped the car und they engaged in various sex acts.

“Thereafter, Gloe told defendant that she “h ! a guy rape me before and

I squealed on him, but they couldn't find him, and I might squeal on you,

too.” When defendant said “You wouldn't do that, would you” she respond-

poodle ge would.’ Gloe then got out of the car to get her clothes and clean

“Defendant grabbed his knife, followed her out of the car and started

Stabbing her in the stomach. He remembered stabbing all over her body,

cutting her throat aad stomach, removing her intestines, cutting off her

breasts. ‘and stabbing her in the vagina, leaving iis knife embedded there.

He stated that he stabbed her in the vagina because ‘I wanted to do it the

same way | did Karen.” A subsequent autopsy revealed 120 separate stab

and incisional wounds.

“After Gloe was dead, defendant attempted to break her legs ‘[b]y stand-

ing and pulling on them and then agsin urinated on the body He left with

her address book and her bra and panties. Asked if he had intended to kill

Gloc when he first picked her up. defendant stated that ‘I didn't have any

intention of killing her until she started saying she was going to snitch on

“A few days after Gloe’s death, a woman who had seen Gloe gct into

defendant's car spotted the car parked in @ gas station and notified *he

police, who traced the car to defendant and arresicd him. At the time of his

arrest, Litzau’s cigarette hghter was found im his pocket. With defendant's

consent, the officers searched his apartment and found Gloc’s address book,

Litzau's cosmetic case and—under his bed—numerous items of women's

underwear, including several belonging to each of the victims.” (Robertson

i. supra. 33 Cal.3d at pp. 31-32.)

In ts case-in-chief, the prosecution set out to show the penalty of death

was aprropnate for defendant. At the penalty phase of the initial tral the

defense had attemptcd to demonstrate that defendant's culpability was re-

duced by mental disease or defect. In evident anticipation of the case it

expected the defense to present here, the prosecution called several expert

witnesses.

The prosecution experts—four psychiatrists and two ona

tihed in sum as follows: defendant had a character or personality disorder,

“At thr poant the Robernen J opmon notes “Defendant had sharpened his knife between

the Luzaw and Gioe homawies ~ (3) Cal 6 ot p 32. fe 2)

a, |~ t=,” .>ae

Peorit v Rosi rtson 31

48 Cal id 18, — Col Rpewr —, — Pld — (Fed 1989)

variously described as passive-aggressive or mixed character disorder with

antisocial features and poor impulse control, he was emotionally immature

and «as of borderline or low average inielhgence, he lacked insight and was

concerned only for himself, he was seaually aggressive, recenved gra-

tification from intheting pain and had feelings of inadequacy; and as a child

he had developed slowly and suffered emotional trauma. The prosecution

experts were in conflict as to whether defendant was a mentally disordered

sex offender, they were unanimous that defendant did not suffer from any

mental! disease or defect and was not affected by posttraumatic stress disor-

der.

As further evidence in aggravation of penalty, the prosecution introduced

evidence of defendant's prior crimes. Ernest F. testified that one might in

1973, when he was 0 19-year-old enlisted man in the Manne Corps, he went

out drinking in Yuma, Anzona, at a bar he met a man who introduced

himself as “Tex”, he and “Tex” went bar hopping, in the desert outside of

Yuma, “Tea” attacked him, placing a knife to his neck and jabbing him

with the weapon; “Tex” forced him to submit to oral copulation as he held

the knife at his testicles and groin and jabbed, “Tex” repeatedly threatened

to mut:late him and leave him in the desert and also threatened to‘kill him;

he offered no resistance to the attack and soon managed to escape, he

reported the incident to the police, but charges were never filed. At tnal he

Stated dcfendant was the man he had known as “Tex.”

Kim P. testified that one night in 1976 she was standing in a parking lot

at a truck stop in Ontario, California; a man approached her from behind,

put a knife to her throat and forced her into his automobile, a citizen's band

radio was on; he drove her to a remote area where he compelled her to

disrobe and then cut off her underpants with his knife; he told her he hated

women and repeatedly said he was going to kill her, he beat her about the

face, head, and breasts; he violated her with a Coca-Cola bottle until her

vagina bled, he put lit cigarettes into her vagina and called her a “cry baby”

when she complamed of pain: he forced her to orally copulate him, he took

a pair of underpants from her bag, saying they were for a collection he kept,

when the citizen's buna radio crackled, he became distracted and she fied;

he cruised around the area for five or ten minutes shouting threats that he

would kill her, but she made good her escape and reported the incident to

the police. She identified defendant as her assailant.

Finally, Catherine A. testified that one night in 1977 @ man driving a

Sistion wagon approached her as she was walking along a street in San

Bernardino; he offered to pay her for sexual services; she accepted and

entered the vehicle. the man pulled a gun and said, “All nght, you fucking

whore biich. I've got you now,” and drove on, when they armed at «

a Se Ok eee 7 he te

ee ee eee os

“o-

32 Prorit » Rowertson

48 Cal dd 18, — Cal Rptr —. — Pld — [Feb 1989}

remote area, the man told her to get in the back of the station wagon and

remove her clothing; he repeatedly said he had to kill her; when she asked

why, he responded otherwise she would go to the police: she replied she

would not and generally attempted to mollify him: he sodomized her until

she bled, forced her to orally copulate him and masturbated in her face; he

beat her breasts and regarded them with obsession: he took her

saying he wanted them for a collection he kept: eventually, he told her to

get out of the car; when she did so, he began to drive off, but then turned the

car back; as she hid in a nearby cemetery, he drove up and down for about

20 minutes and eventually left; she did not report the incident at that time

and charges were never filed. At trial, she identified defendant as her assail-

ant.

In its case-in-chief, the defense endeavored to show death was not the

appropriate penalty: defendant had a traumatic childhood, was mildly men-

tally retarded, had low inteiligence and poor judgment, and was in essence a

12-year-old boy in the body of a man; at the ume of the crimes he was

affected by posttraumatic stress disorder as a result of military service in

Vietnam and by brief reactive psychosis: he had made an excellent adjust-

ment to incarceration, had become sincerely religious, and would behave

well in prison and pose no danger to others.

To support its position, the defense introduced evidence, through defend-

ant's mother and sister and expert witnesses, concerning defendant's life

before commission of the crimes in question. The evidence shows a traumat-

ic birth preceded by a difficult and prolonged iabor: slow development of

speech and walking; parental divorce. followed by kidnap by his father,

ultimate return to his mother, and thereafter care alternating between a

disturbed mother and a strict grandmother, domination by a cruel and

overbearing sister: and social and academic difficulty in school. At nine

years of age, defendant was examined by a neurologist, who diagnosed him

as mildly mentally retarded with possible brain damage.

Defendant served two years in the Job Corps and then enlisted in the

Army. During his eight years military service he did two tours of duty in

Vietnam, totaling almost three years. On his return to the United States,

defendant had difficulty adjusting to the less structured environment of the

peacetime military; he cxpenenced nightmares and suffered from depres-

sion. In 1973 he married a woman 12 years his senior who had 4 children by

@ previous marriage. The union quickly ended in divorce, as defendant was

unable to shoulder responsibility and was closer in mental and emotional

level to the children than to his wife.

In 1975 defendant attempted to reenlist in the Army, but was refused.

Thirty years old, he returned to his mother's home. He was unable to learn

Peorp._e vy. RORERTSON 33

48 Cal 3d 18, — Cal Rptr —, — P.2d — [Feb 1989)

a usable skill or to hold a job. In 1976 he attacked Kim P. and was sent to

jail. In 1977 he was released. Later that year he killed Karen Ann Litzau

and Kimberly Gloe.

Dr. Hunt, the neurologist who had examined defendant at age nine,

testified defendant had suffered organic brain damage and was mildly men-

tally retarded and not amenable to treatment; he appeared to suffer from no

specific mental! disease, nor was there any plain psychiatr'c explanation for

his behavior, although he may have been psychotic during commission of

the crimes in question. Dr. Hunt believed defendant had suffered definite

impairment of his mental functions and therefore should not be sentenced

to death.

Dr. Robert Postman, a psychologist, testified defendant was of below

average intelligence, was probably mildly mentally retarded and perhaps

had an antisocial personality disorder; at the me of the crimes in question

he was suffering from brief reactive psychosis rooted in part in a deep

hatred of women. Dr. Postman believed defendant would pose no danger to

others in the structured setting of prison and would be productive there.

Thomas S. Wulbrecht, director of the Victnam Veterans Outreach Center

in Riverside, testified about defendant's experiences in Vietnam and their

effects on his psyche. Wulbrechi stated defendant exhibited chronic post-

traumatic stress disorder overlaid with an antisocial personality disorder,

posttraumatic stress disorder could lead to a dissociative state wherein the

subject would revert to the “survivor mode™ of combat in an “altered state

of consciousness”; the commission of the crimes in question was consistent

with behavior in such a state; it was also consistent with behavior under

brief reactive psychosis.

As evidence defendant would not pose a danger to others if he were

sentenced to life imprisonment without possibility of parole, the defense

_ presented the testimony of three correctional officers and two fellow in-

mates of defendant.

Deputy Sheriff Roger Coyle testified that during defendant's confinement

in the county rehabilnauon center he conducted himseli well and never

caused any disciplinary problems; on onc occasion when Deputy Coyle was

attacked by other inmates and los: control of his gun, at danger to himself

ee eI cee CONE

gun

Sergeant Gerald Riley. formerly a correctional officer on “Death Row” at

San Quenun Prison, testified defendant adapted readily to incarceration and

a Sa re 7_~" — ;T - --. © Es

— —_—

—_— ee mee mee ce

34 Peor.t » ROBERTSON

48 Cal.3d 18. — Cal Rpir —, — Pld — [Feb 1989)

was “an outstanding prisoner” and had “never been any problem"; he gets

along with everybody well; he follows the rules; he seems to have the

intellhgence of a fourth- or fifth-grader, he 1s a hard worker and eagerly does

favors for the staff and other inmates; although when he arrived on Death

Row, he had an obsessive interest in pornography, he has since started

studying the Bible and become a born-again Christian; as a result, he has

pul away pornography and become an even better prisoner than he had

previously been. Sergeant Riley believed defendant would pose no danger to

others in prison. Norvell Greene, a correctional officer on Death Row, gave

similar testimony.

Mariney Joseph and William Payton, death row inmates with defendant,

testified to their Bible study with defendant and the marked change it had

produced in him.

Following closing argument, the court announced its penalty decision.

Thereafter, the court denied defendant's automatic motion for modification

of penalty (former § 190.4, subd. (e)) and imposed judgment of death.

Il. CONTENTIONS

Defendant makes several claims attacking the judgment of death. As will

appear, none requires reversal.

A. The Court's Jurisdiction to Decide Penalty.

(1) Defendant contends that under the 1977 death penalty law the court

was without jurisdiction to decide the issue of penalty when, as here, a jury

had decided the issue of guilt.

Except as provided otherwise by statute, “Superior courts have original

[subject matter] jurisdiction in all causes,” criminal as well as civil. (Cal.

Const., art. V1, § 10.) “Inherent in subject matter jurisdiction is the power

to inquire into the facts, to apply the law and to declare the

(Burris v. Superior Court (1974) 43 Cal.App.3d 530, $37 [117 Cal.Rptr.

898); accord, People v. Brown (1970) 10 Cal.App.3d 169, 175 [88 Cal.Rptr.

801}, citing authorities.) We find nothing in the 1977 death penalty law that

denies the court power to decide the issue of penalty in a case in which *

jury has decided the issue of guilt.

In arguing to the contrary defendant relies or former section 190.4,

which provided in relevant part as follows.

“(b) If defendani was convicted by the court sitting without a jury, the

trier of fact at the penalty hearing shall be a jury unless a jury is waived by

: af a

PEOPLE » ROBERTSON 35

48 Cal 3d 18. — Cal Rpir —, — P2d — [Fed 1989)

the defendant and the people, in which case the trier of fact shall be the

court. If the defendant was convicted by a plea of guilty, the trier of fact

shall be a jury unless a jury is waived by the defendant and the people.

“(c) If the trier of fact which convicted the defendant of a crime for

which he may be subjected to the death penalty was a jury, the same jury

shal! consider any plea of not guilty by reason of insanity pursuant to [Penal

Code} Section 1020, the truth of any special circumstances which may be

alleged, and the penalty to be applied, unless for good cause shown the

court discharges that jury in which case a new jury shall be drawn. The

court shal! state facts in support of the finding of good cause upon the

record and cause them to be entered into the minutes.” (Stats. 1977, ch.

316, § 12, p. 1261.)

We do not read the foregoing provisions to deny the court jurisdiction to

decide the issue of penalty when a jury has decided the issue of guilt.

Subdivision (6) was evidently intended to grant defendants who had waived

jury trial on the issue of guilt the mght to a penalty determination by a jury.

Subdivision (c), in turn, was evidently intended to provide that when guilt

had been devermined by a jury, the same jury should decide the remaining

issues unless discharged for good cause, i.e., to declare that defendants who

had been convicted by a jury were not entitled to have a different jury

determine the issues of special circumstance, sanity, or penalty. Whether

read separately or together, these provisions patently do not affect the

subject matter jurisdiction of the court. Consequently, the court had juris-

diction to determine the issue of penalty in defendant's case.

B. Waiver of Trial by Jury.

(1969) i Cal.3d 122, 131, 133 [81 Cal. Rptr. 577, 460 P.2d 449}.)

jury deadlock, former section 190.4, subdivision (b) provid-

ity of parole.™ Saeed aidinty akin dle aoaioeahe hue and he

~ eee

36 : PLOPLE v ROBLRTSON

48 Cal 3d 18, — Cal Rptr —. — P.2d — [Feb 1989)

imphcations of a waiver, the court made no reference to the effect of a jury

deadlock, but stated: “You understand, also, that if you do waive jury and

submit it to the Court, the Court will act solely. Jf you have a jury trial,

before a verdict can be returned either way. it requircs unanimous agreement

of all 12 jurors. do you understand that?” (Italics added.) Defendant con-

cedes the court's statement was technically correct, but argues that in omit-

ting the consequences of a deadlock it was prejudicially misleading.

(3) It is settled a defendant does not have a constitutional right to jury

trial on penalty. (Spaziano v. Florida (1984) 468 U.S. 447, 458-459 [82

L.Ed.2d 340, 104 S.Ct. 3154] [federal Constitution); People v. Hough (1945)

26 Cal.2d 618, 620-621 [160 P.2d 549) [state Constitution).) In Hicks v.

Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175, 100 $.C1 2227], however,

the United States Supreme Court stated: “Where —as in California—“a

State has provided for the imposition of criminal punishment in the discre-

tion of the trial jury, . . . [t}he defendant in such a case has a substantial

and legitimate expectation that he will be deprived of his liberty only to the

extent determined by the jury in the exercise of its statutory discretion

[citation], and that liberty interest is one that the Fourteenth Amendment

preserves against arbitrary deprivation by the State.” (447 U.S. at p. 346 [65

L.Ed.2d at p. 180).)

(2b) In the instant case, having reviewed the question closely, we are of

the opinion there was no such arbitrary deprivation. Rather, the record

reveals a knowing, intelligent and voluntary waiver by defendant of his

Statutory mght to trial by jury on the issue of penalty. Defendant was

represented by two apparently competent counsel who over the course of

several days discussed with him “at length” the consequences and nature of

his proposed waiver. Absent an assertion or evidence to the contrary, we

presume that competent counsel would have informed defendant of the

effect of a jury deadlock. (Cf. People v. Hendricks (1987) 43 Cal.3d 584,

$92-593 [238 Cal.Rptr. 66, 737 P.2d 1350].) Counsel in defendant's pres-

ence expressed on the record their sound tactical reasons for advising de-

fendant to waive a jury and consenting to the waiver.‘ The court, before

“Counsel explained “Number one. It is # tactical decision on our part bascd upon conver-

sations that counsel, Mr. Wolfe and | have had with fnends, people in the community, other

attorneys. competent tnal cnminal law attorneys in the area. After a complete review of the

facts of the indwidual case, and, lasily, hased upon conversations with a Dr. Linda Mesa, an

eapert psychologist on jury selection m drath penalty cases, based upon those reasons, and in

talking to Mr. Robertson, we feel it is to his advantage and the best advise (sic) that he, in

fact, give up his mght to have 8 jury tral on this issue, and instead consent to have the matter

heard as a court tnal.

“1 would also mdicate to the Court that we have explained to Mr_ Robertson, and he real-

izes tha! this does not mean that he would garn a favorable advantage by waiving the jury, be-

Cause as he weil knows the Court is limited to making a decision of esther imposing ihe death

PEOPLE » ROBERTSON 37

48 Cal3d 18, — Cal Rptr —, — P2d — [Feb 1989)

accepting defendant's waiver, engaged him in an extensive and thorough

voir dire expressly directed to determining his waiver was knowing, intelli-

gent and voluntary.‘ Although the court would have done better to explain

penalty or imposing the punishment of life without possibility of parole By him waiving the

jury does not, and he realizes this, gain an advantage as to one of those punishments as

against the other punishment.”

'The relevant colloquy was as follows. “THe Court: Mr. Robertson, under the law you

do have a mght to waive your mght to jury. Of course, the District Attorney has a right to

jury tnal, too Before the Court can accept it, st will require a waiver from the Distnct Attor-

ney’s office, also. Under the law the Court, although you nave the nght to do that, the Court

18 required to make inquiry of you to be sure that 11 1s a knowing and intelligent waiver before

the Court can consent tc it So, I am gomng to go through some questions which have been

provided to me by the Distnct Attorney as a condition of their consenting to waive the jury,

also, and I want to discuss this with you very briefly

“You understand that your position of dire or severe jeopardy in the rehearing of your tn-

a!'s penalty phase will not be reduced by the fact you are choosing a court tnal rather than a

jury tnal. do you understand that”

“Tht DEFENDANT. Yes, sir.

“Tue Court: You also understand that you should be aware that you are in exactly the

same jeopardy regardless of the method of trial which you personally wil! choose” Your posi-

tion will not be altered in any degree Neither the evidence nor the legally appropnate out-

come dictated by the evidence will be altered. only the avenue of your alternate sentencing

will be changed in any way. do you understand that”

“Trt DEFENDANT: Yes. sir

“Trt Court. You understand, also, that if you do waive jury and submit it to the Court,

the Court will act solely If you have a jury tnal, before a verdict can be returned either way,

it requires unanimous agreement of all 12 jurors. do you understand that?

“Tut DrFENDANT Yes, Your Honor.

“Tue Court. And understanding that you still wish to waive and give up your right to

have a jury”

“THe DEFENDANT: Yes, sir.

“Tre Court. You understand that my personal philosophy, if any, concerning [the] death

penalty will not affect or interfere with my evaluation of the evidence or application of the

law, do you understand that?

“Tut DcFENDANT. Yes, sir.

“Tue Court Under my constitutional oath I'm required to apply the law the way it is

whether I personally agree with 1 or not. My personal philosophy has nothing to do with it.

Do you understand that”

“Tue Derenvant: Yes, sir.

“Tue Court: In other words. you, by waiving your right to a jury trial, are doing so with

the awareness that the Court will behave as a jury, a jury that has sworn that it will sentence

you to death if appropnate under the law and the evidence; do you understand that?

“THe DireNvant: Yes, sir.

“Tue Court: And the other side of that, of course. is that the Court will sentence you to

life in prison without the possibility of parole if the Court finds, after reviewing all the evi-

dence, that that 1s appropnate under the law and the evidence, you understand that. also?

“THe DerinoanT: Yes, war.

“Tue Court. You understand that by waiving your nght to a jury trial on the issue of

your penalty and by requesting a court inal you are not lessening. reducing or eliminating the

possibility of your penalty being set at death if the evadence supports such « penalty, do you

understand that”

“Trt Di tt NDanT. Yes, sir

38 PEOPLE v. ROBERTSON

48 Cal 3d 18, — Cal Rpir —, — P.2d — [Feb 1989)

to defendant the effect of a jury deadlock, its omission does not invalidate

defendant's waiver. Defendant's requirements for an effective waiver are too

Stringent for any situation; no waiver requires the court to explain every

single conceivable benefit and burden of the choice being made.*

Nor, as defendant argues, does the court's failure to inform him that it

would automatically review any verdict of death returned by a jury, require

a different conclusion. We have previously held that a failure to so advise a

defendant under the 1978 death penalty law does not vitiate a jury waiver.

(People v. Deere (1985) 41 Cai.3d 353, 359 [222 Cal.Rptr. 13, 710 P.2d

925).) The same is true under the 1977 statute.

Finally, we reject defendant's claim the court failed to conduct the hear-

ing on his jury waiver with the “special attention and care” that he asserts

his allegedly “borderline intelligence” merited. The record is otherwise.

C. Boykin-Tahl Waiver.

Following defendant's waiver of jury trial, counsel stipulated the court

could read and consider the former testimony of 21 specified witnesses, with

the understanding either side could if it wished cal! any of the witnesses for

“Trt Court. You understand that by warving your nght to jury tna! you are not receiv-

ing any promises from anyone, esther express or implied, of leniency or special consideration,

do you understand that?

“THE DEFENDANT: Yes, sir.

“THe Court: Having been made aware of the Court's legal obligations and the Court's

planned course of conduct required by the law, 1s it your desire to give up your mght to a jury

tna! on the issue of your penalty and request a court tnal?

“THE DEFENDANT: Yes, sir.

“THe Court: In making your decision to waive your rights to a jury trial, has anyone

made any direct or implied threats to you?

“THe DEFENDANT: No, sir.

“Tue Court: Or has anybody made any direct or implied promises to you?

“TH DEFENDANT: No, sir.

“Trt Court: In making your decision to waive your right to a jury trial, do you believe

that you have received any kind of pressure from anyone?

“Tut DEFENDANT: No, sir

“Tue Court: Is your decision to waive your right to 8 jury trial freely and voluntarily

“THe Derenpant: Yes, sir-

ne i lg ee ramet

“Tut DEFENDANT: No, sir

“Tue Court: | take it counsel again join with the defendant in the waiver?

“Ma. WELCH: Counsel joms, yes. Your Honor.

*We recognize that Harris v. Siote (1983) 295 Md. 329 [455 A.2d 979, 984-985). supports

defendant's argument that his waiver was ineffective. However, we find its reasoning unper-

sanive and decine 1 flow here (Se 455 A.26 at pp 985.986 (cone & ds opm of Mur

phy, C5.)

ee a. ean

PEeopLe vy. ROBERTSON 3»

48 Cal3d 18, — Cal Rpwr. —, — P.2d — [Feb 1989)

additional testimony. Defendant assented to the stipulation. The prior testi-

mony dealt with the circumstances of the crimes and the background to

defendant's statements to the police and was given at defendant's prelimi-

nary hearing. the special hearing on the admissibility of his confession, and

his first trial. The parties called 3 of the 21 witnesses whose prior testimony

was submitted, as well as 20 additional witnesses.

(4a) Citing Boykin v. Alabama (1969) 395 U.S. 238 (23 L.Ed.2d 274, 89

S.Ct. 1709], Jn re Tahl. supra. | Cal.3d 122 and their progeny, defendant

claims the court erred in failing to advise him and obtain on-the-record

waivers of his constitutional rights to a jury trial, to confrontation and

cross-examination and against compulsory self-incmmination.

(S) Under the rule of Boykin v. Alabama, supra, 395 U.S. 238, and Jn re

Toh, supra, 1 Cal.3d 122, as extended in Bunnell v. Superior Court (1975)

13 Cal.3d $92 [119 Cal.Rptr. 302, $31 P.2d 1086) and other cases. “when

the defendant agrees to a submission procedure, such as a guilty plea or a

submission on the preliminary hearing transcript, by virtue of which he

surrenders one or more of the three specified rights [jury trial, confrontation

and privilege against self-incrimination]” (People v. Hendricks, supra, 43

Cal.3d at p. $92), the record must reflect that he was advised of and person-

ally waived the applicable nght or rights. (Bunnell, supra, at p. 605.) When

the submission 1s a guilty plea or “tantamount to a plea of guilty” (/n re

Mosley (1970) 1} Cal.3d 913, 924 [83 Cal.Rptr. 809, 464 P.2d 473]}) the

Boykin-Tahl requirements are constitutionally compelled. (/d. at p. 926, fn.

10; see People v. Levey (1973) 8 Cal.3d 648, 652 [105 Cal.Rptr. 516, 504

P.2d 452).) When, however, the submission is in fact not tantamount to a

guilty plea—when “it appears on the whole that the defendant advanced a

substantial defense” (People v. Wright (1987) 43 Cal.3d 487, 497 [233

Cal.Rptr. 69, 729 P.2d 260]}—the Boykin-Tahi advisements and waivers are

not constitutionally compelled, but are required only as a matter of judicial

policy. (/bid.; see People v. Hendricks. supra, 43 Cai.3d at p. 592; cf. People

¥. Gray (1982) 135 Cal.App.3d 859, 869 [185 Cal.Rptr. 772) [hybrid pro-

ding}.)

We have not previously had occasion to determine whether the

" Boykin-Tahl rule applies at the penalty phase of a capital case, nor has the

United States Supreme Court addressed the application of Boykin to penal-

ty trials. Assuming, without deciding, that the requirements of Boykin- Tah!

would in some circumstances apply to a submission of the issue of penalty

on the transcript of prior proceedings, this is not such a case.

(6) A “submission” within the meaning of Tahl. supra. 1 Cal.3d 122

and Bunnell, supra, 13 Cal.3d 992 occars when a defendant gives up his

“~er-* .

“--

ars

Ve TP a. a aes a le a sn ee eee

» nad _— rf 7 . *

40 ; PEOPLE v. RORTRTSON

48 Cal 3d 18, — Cal Rpir —, — P.2d — [Fed 1989)

right to trial by jury and, unless otherwise specified, the right to present

additional evidence in his own defense and agrecs the court can decide his

case on the basis of the transcript of prior procecdings. (Bunnell v. Superior

Court, supra, 13 Cal.3d at p. 604; see People v. Hendricks, supra, 43 Cal.3d

at p. 593.) Although the parties may reserve the right to present additional

evidence, the essential components of a submission are waiver of a jury tnal

and, with respect to the witnesses who testified in the prior proceedings,

waiver of the right to confrontation in the present proceeding. (See People v.

Wright, supra, 43 Cal.3d at p. 496; People v. Hendricks, supra, 43 Cal.3d at

p. 593, and cases cited; cf. People v. Phillips (1985) 172 Cal.App.3d 670 [218

Cal.Rptr. 524).) Waen the submission is a “slow plea” or “tantamount to a

plea of guilty,” the defendant also gives up his privilege against self-incrimi-

nation. (People v. Levey, supra, 8 Cal.3d at p. 652.) Thus, a “submission” is

defined by the rights a defendant surrenders.

(4c) Here, as indicated, defendant had no constitutional right at the

penalty phase to a jury trial. His waiver of the statutory right, moreover,

was not a consequence of his stipulation to admission of the witnesses’

former testimony, but preceded it. (Cf. People v. Phillips, supra, 172

Cal.App.3d at p. 673.) Further, by agreeing to the stipulation defendant did

not incriminate himself by an “involuntary confession of guilt™ (Wright,

supra, 43 Cal.3d at p. 495) or, in terms applicable to the penalty phase, an

involuntary concession that death was the appropriate penalty; to the con-

trary, he offered a complete and skillful defense. Nor did defendant surren-

der the right to confront and cross-examine the witnesses against him;

rather, defendant express!» reserved the right to call the witnesses whose

former testimony was admitted. As we recognized in People v. Hendricks,

supra, 43 Cal.3d at pages 592-593, involving counsel's failure in a jury trial

to present a defense, there is no surrender of any one or more of the three

specified constitutional rights “when the defendant undergoes—and thereby

exercises his right to—a jury trial and has the opportunity to cross-examine

the witnesses against him and to refuse to incriminate himself.” (Italics

added.) We perceive no reason for a different conclusion when the defend-

ant undergoes a court trial.

Here defendant had the opportunity in the prior proceedings to confront

right to call the witnesses—in the penalty trial. In these circumstances,

counsel's choice ultimately to exercise aefendant's right of confrontation in

only a limited manner was not a “submission,” but rather, was no more

than a tactical decision within counsel's discretion to make. (See People v.

Hendricks. supra, 43 Cal.3d at pp. 592-594; People v. Ratliff (1986) 41

Cal.3d 675, 697 [224 Cal. Rptr. 705, 715 P.2d 665); People v. Williams

>»

"Eee

PeorpLe v. ROBERTSON 41

48 Cal.3d 18, — Cal Rpw. —. — P.2d — [Feb 1989)

(1970) 2 Cal.3d 894, 905 [88 Cal Rptr. 208, 471 P.2d 1008); People v. Hall

(1979) 95 Cal.App.3d 299, 314-316 [157 Cal. Rptr. 107); see also People v.

Chasco (1969) 276 Cal.App.2d 271, 274-276 [80 Cal.Rptr. 667] (opn. by

Kaus, P. J.).) “Once a defendant has elected to proceed with a contested

trial, rather than plead guilty or accept sentencing based upon a preliminary

examination transcript, the manner of presenting evidence . . . becomes

one of trial tactics properly vested in counsel, at least in the absence of a

conflict between counsel and his client.” (People v. Ratliff, supra, p. 697,

citing People ¥. Hill (1971) 19 Cal. App.3d 306, 315-316 (96 Cal.Rptr. 813);

see also People v. Frierson (1985) 39 Cal.3d 803, 818. fn. 8 [218 Cal. Rptr.

73, 705 P.2d 396].) Although defendant would have us reach a contrary

conclusion based on the sheer number of witnesses whose testimony was

admitted, we perceive no meaningful basis for the distinction.

(7) We recognize that trial counsel in the guise of a tactical choice

cannot deprive a defendant of his basic constitutional rights (People v.

Frierson, supra, 39 Cal.3d at pp. 812-817; Townsend v. Superior Court

(1975) 15 Cal.3d 774, 781 [126 Cal. Rptr. 251, 543 P.2d 619)) and that the

Boykin-Tah/ rule applies to tactical decisions that implicate those mghts

(e.g, People v. Hall (1980) 28 Cal.3d 143, 157, fn. 9 [167 Cal. Rptr. 844, 616

P.2d 826}). In the instant case there was no deprivation. Rather, counsel

reserved the mght to call and cross-examine all the witnesses, but as a

tactical matter determined it was to defendant's advantage not to have the

witnesses testify in person.

(44) Even assuming, arguendo, that the stipulation in this case consti-

tuted a “submission” within the meaning of Tah/, supra, 1 Cal.3d 122 and

Bunnell, supra, 13 Cal.3d 592, clearly the submission was not tantamount

to a concession that death was the appropriate penalty. In these circum-

Stances the trial court was not constitutionally compelled to adhere to the

requirements of Boykin-Tahi (Wright. supra, 43 Cal.3d at pp. 495, 497);

hence, the reasonable possibility standard of review applies. (People v.

Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135).)

Unless we indulge in mere speculation and conjecture, on this record we

can come to no conclusion other than the following: Had defendant been

advised of his right of confrontation and privilege against self-incrimination

and then validly waived his rights, the submission procedure would have

been the same with the same result. Had he instead chosen not to make the

waivers, the resuli likewise would have been the same. The witnesses whose

former testimony was admitted had been cross-examined at one of the prnor

Proceedings and in some cases at more than one. Consequently, if defendant

had chosen not to make a waiver, all or at lest substantially ail of the 18

Witnesses whose prior testimony was admilied by stypulation and who did

ee ee ee eee ee ee ee ee ee ee ee

42 Piorit v Rost rtson

48 Cal3d 18, — Cal Rptr. —, — P2d — [Fed 1989)

not iestify would have given live testimony to the same or substantially the

same effect. We thus conclude that the court's error, if any, in failing to give

the required advisements and take defendant's waivers was nonprejudicial.

D. Use of Unadjudicated Criminal Activity.

1. Due Process.

Former section 190.3 permitted the presentation of penalty phase evi-

dence of “other criminal activity by the defendant which involved the use or

attempted use of force or violence,” and provided that “ermminal activity

does not require a conviction.” At defendant's penalty trial Ernest F. and

Catherine A. testified to defendant's attacks upon them. In neither instance

had charges been filed against defendant.

(8) Defendant contends that admission of prior unadjudicated incidents

of criminal activity violates due process. We considered and rejected a

similar claim in People v. Balderas (1985) 41 Cal.3d 144, 204-205 [222

Cal.Rptr. 184, 711 P.2d 480), decided under the 1978 death penalty law.

(Accord, People v. Gates (1987) 43 Cal.3d 1168, 1202 [240 Cal. Rptr. 666,

743 P.2d 301].) As defendant acknowledges, the 1977 law is identical in

relevant part. (See generally People v. Phillips (1985) 41 Cal.34 29, 69-72

[222 Cal.Rptr. 127, 711 P.2d 423].) Because defendant advances no persua-

sive reason to reconsider Balderas, we adhere to that decision.

2. Stotwe of Limitations.

(9) Relying on Phillips, supra, 41 Cal.3d 29, and section 15, defining a

crime in part by the punishments imposed after conviction.” defendant as-

serts that because prosecution of the 1973 Ernest F. attach and the 1977

tion here. (Cf. Peopie v. Chadd (1981) 28 Cal.3d 739, 756-757 [170

Cal.Rptr. 798, 621 P.2d 837].)

In Phillips we held the term “criminal activity” in former section 190.3

commanding

conviction, either of the following punishments [*) | Death; [*) 2 Imprisonment, [*) 3.

Fine. (*} 4 Kemoval from office, or, [*) 5 Drsqualsacatvon 10 hold and enjoy any office of

honor, trust or prot an the State.”

—

PEoPLe » ROBERTSON rt)

48 Cal 3d 18. — Cal Rpir —, — Pld — [Fed 1989)

the defendant has been acquitted and “nonoffenses for which t

could not even be tned.” (41 Cal 3d at pp. 71-72.) As subs-quen —.

in Phillips makes clear, our purpose was to define the kinds of behavior by

the defendant the statute makes relevant to choice of sentence—to wit—

actual conduct™ involving violence or threat of violence that demonstrates

the violation of a penal statute. (/d. at p. 72 & fn. 24; ef. People v. Gates,

supra, 43 Cal.3d 1168, 1203 [probative value of conduct, not conviction, in

penalty phase] ) To exclude violent criminal behavior simply because its

Prosecution is time-barred would be to ignore the plain terms of former

section 190.3 as well as its underlying purpose—i.e., that the trier of fact, in

determining penalty, make an individualized determination on the basis of

the character of the offender as well as the circumstances of the offense (See

Zant v. Stephens (1983) 462 US. 862, 879 [77 L.Ed.2d 235, 103 S.Ct. 2733):

People v. Jennings (1988) 46 Cal.3d 963, 981-982 (251 Cal.Rptr. 278, 760

png hy A 1978 law); see generally Pecple v. Phillips, supra, 41 Cal.3d at

ote conduct underlying the Ernest F. and Catherine A. attacks clearly

IIs within one or more penal statutes (e.g.. §§ 261 [rape), 207 [kidnap-

ping), 288a, subd. (c) [forcible oral copulation), 286, subd. (c) [forcible

sodomy]); hence was properly considered as other “criminal activity.”

(See generally People v. Jennings, supra, 46 Cal.3d at pp. 981-982.)

Defendant argues additionally that because the statut imitati

run on the incidents, evidence of the alleged offenses mb ara

the duc process clauses of the federal and state Constitutions. In support, he

argues the evidence related to attacks remote in time and thus difficult to

defend against. We doubt whether either attack—that on Ernest F. in 1973

or on Catherine A. in 1977—<can properly be characterized as “remote.”

Nor does the Statute of limitations of itself embody a due process limit on

the time within which a defendant can be required to defend against a

parucular charge Rather. as the United States Supreme Court recognized

in United States v. Marion (1971) 404 U.S. 307, 322 [30 L.Ed.2d 468, 92

S.Ct. 455], statutes of limitation “represent legislative assessments of rela-

tive interests of the State and the defendant in administering and receiving

justice; . . . That these assessments are flexible and not immutable is

demonstrated, inter alia, by the Legislature's frequent amendment of sec-

(1985 ed.) foll. § 800, p. 194.) ee

In People v. Morris (1988) 46 Ca).3d 1, 14.15 Ca

, ). . 119,

P24 O49] we eqjacted he claien ches 0 temetavad Atoms tena ante a

Predicate for a felony-murder special crcumsiance. “A fortior, there is no

aa Pror.e v. ROBERTSON

48 Cal 3d 18, — Cal Rptr —. — Pld — [Fed 1989)

bar to consideration of [time-barred] felonious conduct involving force or

the threat of force as an aggravating factor.” (Jennings, supra, 46 Cal.3d at

p. 982.)

3. Evidence Code Section 352.

(10) Defendant objected to admission of the Ernest F. and Catherine A.

evidence on Evidence Code section 352 grounds. The court overruled the

objection, but granted defendant leave to move to strike the evidence at a

later time. Defendant failed to make a subsequent motion to strike and

expressly withdrew his objection to the evidence. He now argues the court

erred in failing to make an explicit on-the-record finding that the probative

value of the evidence outweighed its prejudicial effect. (People v. Green

(1980) 27 Cal.3d-1, 25 [164 Cal.Rptr. 1, 609 P.2d 468).)

Defendant, having withdrawn his objection to the evidence, cannot now

complain of its admission. (11) Further. we reject the proposition that at

the penalty phase of a capital trial the court has discretion under Evidence

Code section 352 to exclude evidence of unadjudicated criminal activity

involving violence. To the contrary, the evidence is expressly made admissi-

ble by former section 190.3. (See People v. Karis (1988) 46 Cal.3d 612, 641

[250 Cal. Rptr. 659, 758 P.2d 1189} [1978 law).)

4. Reliability and Sufficiency of the Evidence.

(12a) Defendant complains evidence of the Ernest F. and Catherine A.

offenses was unreliable, as each was established by only a single witness.

Our law, however, ¢ .pressly provides that the testimony of a single witness

is sufficient to establish a fact. (Evid. Code, § 411.) Any contradictions, as

defendant asserts, or other weakness in the witness's testimony are matters

to be explored on cross-examination and argued to the trier of fact. The

rehability of the evidence is safeguarded by the requirement that the trier of

fact may consider the evidence only if it determines the other crimes have

been proved beyond a reasonable doubt. (Robertson I, supra, 33 Cal.3d at

pp. 53-55.)

Defendant maintains that in neither instance did the evidence establish

“criminal activity” beyond a reasonable doubt. (13) In reviewing the

sufficiency of the evidence, our task is to determine “ ‘whether, after viewing

the evidence in the hght most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond

reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576 [162

Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R4th 1255). quoting Jackson v. Vir-

ginia (1979) 443 U.S 307, 319 [6) L.Ed.2d S00, 99 S.Ct. 2781), italics in

PEOPLE ». ROBLRTSON 45

48 Cal.3d 18, — Cai Rptr —, — Pld — [Fed 1989)

original, accord. People v. Guerra (1985) 40 Cal.3d 377, 385 [220 Cal. Rptr

374, 708 P.2d 1252].) (12b) Applying this test, we conclude that a ratio-

nal tner of fact could have found beyond a reasonable doubt that defendant

had used force or the threat of force to compel F. and A. to commit oral

copulation (§ 288a, subd. (c)).

$. Lack of Notice.

(14a) Before defendant's first trial the prosecution gave notice that it

would introduce evidence of the Kim P. attack in aggravation at the penalty

phase, which it did. The prosecution did not give notice that it would

introduce evidence of the Ernest F. and Catherine A. attacks, nor did it

attempt to introduce such evidence. More than three months before com-

mencement of the penalty phase retrial, however, the prosecution gave

notice that it would introduce in aggravation evidence concerning the Er-

nest F. and Catherine A. attacks, as well as the Kim P. attack. Defendant

claims the Ernest F. and Cathenne A. evidence was inadmissible under the

notice requirement of ‘ormer section 190.3.*

The record is unclear that defendant raised the notice objection below.

Assuming arpuendo that he did so, he subsequently, for tactical reasons,

expressly withdrew his objections to the Ernest F. and Catherine A. evi-

dence; hence he may not raise the claim on appeal. (People v. Rogers (1978)

21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048).)

Defendant's objection in any event lacks merit. The meaning of “trial”

varies depending on the context of its use. (See generally People v. Overstreet

(1986) 42 Cal.3d 891, 896 [231 Cal. Rptr. 213, 726 P.2d 1288] [lead opn. of

Broussard, J), 902-903 [dis opn. of Grodin, J.; Lucas, J. and Panelli, J.,

conc.).) (1S) As it is commonly and ordinarily construed, the word “tri-

al” refers broadly to the formal examination of the matter in issue in a

judicial tribunal for the purpose of determining such issue. (See W.>ster's

Third New Internat. Dict. (1961) p.2439, col. 3, definition

2.) (14b) Where the question of notice arises in the context of the initial

* trial in which the guilt and penalty phases occur in immediate sequence and

thus are part of a unitary proceeding, we have construed “trial” as the

whole proceeding, hence notice must be given in advance of the guilt phase.

(People v. Miranda (1987) 44 Cal.3d $7, 96-97 [241 Cal. Rptr. $94, 744 P.2d

1127).) Where, however, as here, the notice issue arises in the context of a

second trial—-i.e., a “retrial” —following a successful appeal, “trial” must

*Former section 190.3 provided in relevant part tha “no evadence may be presented by the

Prosecution in aggravation unless mote of the evulence a0 be introduced has been given Ww

the defendant withir 4 reammatic penod of time, as determmed by the court, pot to inal ”

(Stats 1977, ch 510. § Hip 1259)

— ee

4% Prorit » Roni RTson

48 Cal 3d 18; — Cal Rptr. —, — P.2d — [Feb 1989)

reasonably be construed to mean the judicial proceeding in which the mat-

ter in issue is again examined and resolved. Only this construction serves

both the evident purpose of the notice provision—viz., “to advise an ac-

cused of the evidence against him so that he may have a reasonable oppor-

tunity to prepare a defense at the penalty trial” (Miranda, supra, at p. 96

[1978 iaw]}—and the overriding purpose of section 190.3 that the jury “be

made aware of all of the factors bearing on the penalty decision” (People v.

Jennings, supra. 46 Cal.3d at p.987 [1978 law}). We conclude, therefore,

that the “trial” to which former section 190.3 refers embraces the original

trial, as defined above, or the retrial, be it of the entire proceeding or the

penalty phase only.

Pursuant to the foregoing, former section 190.3 required the prosecution

to give notice of aggravating evidence at a reasonable time pricr to trial or

retrial. By filing its notice more than three months prior to retrial of the

penalty phase, the prosecution satisfied the notice requirement of the

Statute.

6. Double Jeopardy.

(16) By analogy to the constitutional prohibition against retrial after

acquittal or increased charges or punishment following a successful appeal

(e.g., Blackledge v. Perry (1974) 417 U.S. 21 [40 L.Ed.2d 628, 94 S.Ct.

2098): North Carolina v. Pearce (1969) 395 U.S. 711 [23 L.Ed.2d 656, 89

S.Ci. 2072), defendant argues that because the prosecution failed to intro-

duce the F. and A. incidents at his first trial, double jeopardy principles

preclude their use at retrial. (See Arizona v. Rumsey (1984) 467 U.S. 203,

210-211 [81 L.Ed.2d 164, 104 S.Ct. 2305}.)

Defendant's argument is mentiess. The prohibition against double jeopar-

dy protects a defendant from being placed twice in jeopardy for the same

offense. (U.S. Const. Amend. V; Cal. Const., ar.. I, § 15, see generally

People v. Melton (1988) 44 Cal.3d 713, 756, fn. 17 [244 Cal.Rptr. 867, 750

P.2d 741].) The prohibition has no bearing on the kind or quantity of

evidence that may be introduced in successive tnals of an issuc, nor does it

bar the we of cape extienes, RENEE tue cunts nee te Bepaedy Sy ev

offense arising out of the attacks against , Catherine A.

prosecution, unaware of the incidents ai the tnal. merely mtroduced

them into evidence at the second trial, as it was entitled to do.

E. Circumstances of the Kim P. Attack.

As a consequence of the attack on Kim P., defendant was charged with

four felony coums: kidnapping (§ 209); assault with a deadly weapon

Oe ae ee he eee Res

PEoPLe vy ROBERTSON 47

48 Cal 3d 18, — Cal Rptr —, — P.2d — (Fed 1989}

6 245, subd. (a)); assault by means of force likely to produce great bodily

injury (ibid.), and “sex perversion” (§ 288a). Pursuant to a negotiated dis-

position, defendant subsequently pled guilty to violation of section 288a—

oral copulation by use of force or violence—in exchange for dismissal of the

kidnapping and assault charges. At defendant's penalty trial, the prosecu-

tion called Kim P. to testify regarding the underlying circumstances of

defendant's section 288a conviction as well as the other charges that were

dismissed. (17) Although he made no objection below, defendant now

contends Kim P.'s testimony amounted to an impermissible relitigation of

both the section 288a conviction and the collateral dismissed charges.

In People v. Gates, supra, 43 Cal.3d at page 1203, we rejected a claim

under the 1978 law that the prosecution should not be allowed to present

testimony concerning a prior conviction involving violence to which the

defendant offered to stipulate. We stated: “When dealing with violent con-

duct it is not the fact of conviction which is probative in the penalty phase,

but rather the conduct of the defendant which gave rise to the offense.”

(Italics in original.) Hence, the statute permits the introduction of all evi-

dence of siolem cmmes whether or not they resulted in a conviction, except

those of which the defendant has been acquitted. (/bid.; accord, People v.

Karis, supra. 40 Cal.3d 612, 640, People v. Melton, supra, 44 Cal.3d 713,

754, see also People v. Ghent (1987) 43 Cal.3d 739, 774 [239 Cal. Rpir. 82,

739 P.2d 1250) [evidence of dismissed charges).) This principle is equally

applicable to the 1977 statute, which is identical in relevant part. (Stats.

1977, ch. 316, § 11, p. 1259.)

Relying on People v. Harvey (1979) 25 Cal.3d 754, 758 [159 Cal.Rptr.

696, 602 P.2d 396), defendant urges that introduction of evidence of the

charges dismissed pursuant to his plea bargain violated the understanding

implicit in the bargain that he would suffer no adverse sentencing conse-

quences by reason of the facts underlying the dismissed counts. In People v.

Melton, supra, 44 Cal.3d at pages 755-756, we rejected the identical conten-

tion. For the reasons stated therein, defendant's argument must fail.

F. Admissibility of Defendant's Statements to Experts.

(18) Although he failed to object at trial, defendant asserts error in the

admission in the prosecution's case-in-chief of expert testimony relating

several statements he made in the course of psychiatric and psychological

interviews.* He complains the evidence was irrelevant to the determination

* Defendant complains, inter alia, of the following statements. (1) he ance comtracied vene-

Teal divease while in Vietnam, (2) he had & consensual homosexual cacowme;r m pirwn, (3)

Gunng his Eight years an the Army, he once was AWOL. (4) he missed some therapy sessions

Gurmg the probation period before the homicides, (5) he once received a traffic ticket, (6) he

SSE TO ait

————— me

— i. a: i.

ab Piorit » Rosi RTsoNn

48 Cal 3d 18, — Col Retr. —, — P 2d — [Feb 1989)

of penalty (c.g. People v. Boyd (1985) 38 Cal.3d 762, 775-776 [215

Cal. Rptr. 1, 700 P.2d 782}) and violative of the principles of reliability

(People v. Murtishaw (1981) 29 Cal.3d 733, 771 [175 Cal.Rptr. 738, 631

P.2d 446]) and guided discretion (Woodson v. North Carolina (1976) 428

U.S. 280, 302-303 [49 L.Ed.2d 944, 96 S.Ct. 2978}) applicable to capital

sentencing. .

In Murtishaw, supra, this court noted that under the 1977 death penalty

law “evidence of defendant's character and mental condition” may be ad-

mitted at the penalty phase even if not specifically linked to a statutory

sentencing factor. (29 Cai.3d at p. 773; see People v. Bovd. supra, 38 Cal.3d

at p 772.) As factors to consider, moreover, the 1977 statute, like the 1978

law, specifically listed whether or not the defendant was under the influence

of “extreme mental or emotional disturbance” and whether or not at the

time of the offense he was suffering from diminished capacity “as a result of

mental disease.” (See Murtishaw, supra, at p.772, fn. 35.)

Defendant's statements to the prosecution psychiatrists and psycholo-

gists—in particular, givcn the nature of the offenses, those relating to his

sexual behavior —were relevant to their evaluation of his mental state,

which in turn was directly relevant to the ultimate issue of appropriate

penalty. Consequently, under the 1977 law. introduction of the evidence in

the prosecution's case-in-chief was not error. (Cf. People v. Mosher (1969) 1

Cal.3d 379, 399 [82 Cal.Rptr. 379, 461 P.2d 659].)

Citing Murtishaw, supra, 29 Cal.3d at page 771, defendant argues the

statements were unreliable because contradicted by himself and other wit-

nesses. Afurtishaw, relating to the general unreliability of psychiatric predic-

tions of future dangerousness. is inapposite. Defendant's statements were

Offered not for their truth, but as part c‘ the sum total of factors considered

by the prosecution experts in evaluating defendant. Any contradiction in

the statements goes not 10 their admissibility, but to the weight of the

experts’ opinions insofar as they relied on the statements.

G. Failure to Identify Applicable Law.

(19) len eee ere een eee

paontirsle yee cap me why ths my ungesiag! wren at rendering

meaningful appellate review impossibic. (See, ¢.g.. Gregg v. Georgia (1976)

428 U.S. 153, 188-189, 204.207 [49 L.Ed 2d 859, 96 S.Ct. 2909}: People v.

Rodriguez (1986) 42 Cal.3d 730, 778 [230 Cal.Rpir. 667, 726 P.2d 113); ef.

@ccasonally smoked marijuans and once tned mescalne, (7) he began masturbating s! age

1X Ch) be bepy femate undergarments ender bes matiress

——— “oo, 7 . i ee et

Peor.e » ROBERTSON ae

48 Cal 3d 18. — CalRpwr —, — P.2d — [Feb 1989)

People v. Lanphear (1984) 36 Cal.3d 163, 169 [203 Cal. Rptr. 122, 680 P.2d

1081).) He urges trial judges should be required to designate the instruc-

tions they intend to use in reaching their penalty decisions.

Contrary to defendant's premise, the court expressly stated the law it

would apply, i.e., former section 190 3, except as to the points on which

current section 190.3 was more favorable to defendant.” The applicable

statutes sufficiently set forth the procedures to be followed, the factors to

consider and the manner in which the Sentencing decision is to be made.

Designation of correlative instructions thus is not necessary to permit

meaningful appellate review.

In a related argument, defendant asserts the court erred at the time it

rendered its sentence finding in failing to specify which, if any, of the more

favorable provisions of the 1978 statute it had apphed. He argues he may

thus have been denied the benefit of the 1978 law's apparent mandate of a

life senfence when mitigation outweighs aggravation. The court, however,

expressly stated it would be bound by the 1978 law if it found that mitigat-

ing circumstances outweighed aggravating circumstances. (See fn. 10. ante.)

The record is clear the court determined such not to be the case. (Cf. People

v. Rodriguez, supra, 42 Cal.3d at pp. 783-784.)

"The relevant colloquy 1s as follows. “[THe Court.) I did want to comment on one thing

Both counsel have referred to Section 190 3. And, of course, as we are all aware. that has

been amended by the initiative that went into effect The initiative went mto effect in Novem-

ber of 1978, in any event The Court 1s of the opimon that the Court should consider the act

QS it existed at the tame of the alleged offenses uniess there's some more favorable points in

the initiative, in which event then Mr. Robertson's entitled to have «hichever is the most fa-

vorable to his side Do vou agree with that?

“Ma. Mc Dow eit [Prosecutor] People agree with that statement. yes. Your Honor

“THE Count. There aren't any substantial changes other than the fact that in the imitiatie

they allowed the Court to consider any felony convictions, which was not permitied under

the 1977 act I'm not. at thrs pomt. conscious of any other felonies that were proven in this

Case in any event, 10 u probably docsn't apply.

“Also, there was @ fact. the circumstances sbout wstructing a yury about the effect of the

fight of the governor to commuic the sentence Of course, being a judge and » lawyer, why.

there's no way I can ignore the fact that | have that knowledge But I won't consider it in ar-

Fwing at my decrion ft won't affect my decision one way or the other.

“The only other matter | see that there's been any substantial change in, that is, that under

subsection K of the umiative. the gusdelines for making the determination

difled Ht says that “If the Court finds aggravating circumsiances outweigh the mitigating, it

shall give the death penalty Hf the Court finds that the mitigating factors outweigh the aggrs-

vation. it shall give hfe umpricnment without possibility of parole” I think perhap. to the

pout that it 1. fevoradie to Mr Robertsoa. | would be bound by thone standards If the Count

Binds facts that wimate comirary, then the court wuuki sot be bound. even though the Comm

fownd that the aggravating LMSUMMENCE Uutweighes the miming would aut be bound

then to umpene the death penalty ”

“= <r eee

=a es ae

50 Peorp.it v. ROBERTSON

48 Cal 3d 18; — Cal Rptr. —, — P.2d — [Fed 1989)

H. Misinterpreiation and Misapplication of the Law.

1. Davenport Error.

ermining sentence, the trial court began by discussing each of the

statutory factora lated tn former section 190.3. As to factor (e), whether or

not the offense was committed while the defendant was under the influence

of extreme mental or emotional disturbance, the court found defendan’ was

not acting under such influence, stating mm part: “Specifically, Court

finds that the defendant was not acting under a post-traumatic stress disor-

der or under the psychotic state defined as bricf reactive psychosis.” As to

factor (g), whether or not at the time of the offense the defendant's ee

to appreciate the criminality of his conduct or to conform his conduct te i

requirements of law was impaired as a result of mental disease or the ts

of intoxication," the court found there was no such impairment. bomen

the court summarized its findings. At the conclusion of its statement

applicable aggravating factors and before reciting the applicable mitigating

factors, the court repented its Sading of no evidence of mental or emonode:

disturbance to support factor (c) nor evidence of impaired capacity u .

factor (g). (20) Relying on People v. Davenport (1985) 41 Cal.3d 247,

288-290 [221 Cal.Rptr. 794, 710 P.2d 861), defendant argues the trial court

improperly considered the absence of mitigating factors as factors in aggra-

vation.

ven this court held the prosecutor erred in arguing to the jury

ons ‘aan of certain mitigating factors, not relevant to the — in

the case, rendered each of them an aggravating factor. (/d. at pp. 289-290.)

In People v. Rodriguez, supra, 42 Cal.3d at pages 789-790, bate por

Davenport and held the prosecutor did not err in merely pointing out to t

jury the inapplicability of a mitigating factor. (Accord, People v. Ghent,

supra, 43 Cal.3d at p. 775.)

present case factors (c) and (g) were relevant to the evidence;

indeed. they were the eres of defendant's case in mitigation ge > a

contest, the court's reference to the absence of evidence supportive of fac-

his attempt to prove potentially significant mitigating circumstances. (CI.

Rodriguez, supra, 42 Cal.3d at p. 790.)

2. Boyd Error.

concluding its summary of the applicable aggravating factors, the

ceon ee Gn & tad “thn eotsideed Gn bon Get of Ge Une @ Oe

ee a " of

"The court added mperrment by result of “mental defect,” stating dad so by direction

sis ean tans Rabormae h aupea. 13 Cad agp 9940)

PEOPLE ¥. RORERTSON $1

48 Cal.3d 18, — Cal Retr —, — P2d — [Fed 1989)

murders defendant was on probation from the crimes committed against

Kim [P.} and was actually undergoing therapy at that time.” (21) Rely-

ing on People v. Boyd. supra, 38 Cal.3d 762, defendant asserts the court

erred in considering in aggravation the nonstatutory factors of defendant's

probation status and therapy participation.

In Boyd we held that under the 1978 death penalty statute the prosecu-

tion’s case for aggravation is limited to evidence relevant to the listed

factors exclusive of factor (k}—“'since that factor encompasses only extenu-

ating circumstances and circumstances offered as a basis for a sentence less

than death . . . .* (38 Cal.3d at pp. 775-776.) We thus distinguished the

1978 statute from its 1977 predecessor, under which evidence of defendant's

character and mental condition was admissible if “relevant to aggravation,

mitigation, and sentence™ (former § 190.3, first par.), even if it did not relate

to any specific aggravating or mitigating factor. (38 Cal.3d at p. 772.) De-

fendant argues his probation status and therapy participation are relevant

under neither the 1977 death penalty law—which he concedes is generally

applicable to this case, nor under the 1978 law —which he maintains is

applicable on this point.

Because defendant committed the offenses when the 1977 law was in

effect, that statute's provisions governed the penalty retrial. Although the

trial court, as indicated, expressed its intent to apply any provisions of the

1978 law it deemed more favorable than the 1977 law—in effect, to give

defendant the “best of both worlds”—in so doing, it gave defendant more

than he was entitled to. A capital trial must be held under the death penalty

law in effect at the time the capital offenses were committed; application of

any other law 1s error. (People v. Easley (1983) 34 Cal.3d 858, 883 [196

Cal.Rptr. 309, 671 P.2d 813).) People v. Collins (1978) 21 Cal.3d 208 [145

Cal.Rptr. 686, $77 P.2d 1026) and People v. Rossi (1976) 18 Cal.3d 295 [134

Cal.Rpir. 64, $55 P.2d 1313], cited by defendant, are inapposite. Both cases

deal with the legisiative decnminalization of conduct, the effect of which 1s

to put an end to all prosecutions and proceedings under the repealed statute

not reduced to final judgment. (Rossi, supra, at p. 302; cf. In re Estrada

(1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948) [legislative mitiga-

tion of punishment].) The replacement of the 1977 death penalty law with

the 1978 law had no bearing on the criminality of defendant's conduct or

the severity of punishment therefor; hence the statute in effect at the time of

the offenses governs.

Under the 1977 statute, the sentencer was permitted to consider evidence

of “‘any matter relevant to... . the defendant's churacter, background,

history, mental condition and physical condition.’ ” (People: v. Murtishow,

supra, 29 Cal.3d at p. 773.) Defendant's therapy and probation status

{ro}

eae ee. aa

_ —_—_—=- —

$2 Pcop.e v. Roni RTSON

' 48 Cal 3d 18, — Cal Rptr. —, — P2d — [Feb 1989}

clearly were relevant to his character and background. ‘hey displayed a

violation of the state's trust and indicated defendant's refusal or inability to

learn from his prior misdeeds and to benefit from the help offered him. The

trial court thus did not err in considering these facts.

3. Dual Use of Aggravating Facts.

(22) Defendant maintains the court made an impermissible dual use of

his pnor violent criminal acts against Kim P., Ernest F. and Catherine A.

when it cited those offenses under both factor (b), the presence or absence of

violent criminal activity, and factor (c), whether or not the offenses were

commitied while the defendant was under the influence of extreme mental

or emotional disturbance.

In People v. Melton, supra, 44 Cal.3d 713 we held that although an

individual criminal act cannot be counted twice in aggravation for the same

purpose, there is no constitutional obstacle to “separate consideration of

properly distinct aspects of the penalty determination, even when those

aspects happen to coexist in a single incident.” (/d. at pp. 764-765.) Here,

after reciting the prior offenses as factor (b) criminal activity, the court

discussed their circumstances at length in reaching its determination under

factor (c). Based on its evaluation of the circumstances surrounding the two

charged crimes and the defendant's “criminal history,” as reflected in the

prior violent criminal! acts, the court concluded defendant was not in the

instant case acting under the influence of extreme mental or emotional

disturbance; rather his purpose was sexual gratification.

Use of the prior criminal acts for the foregoing distinct purposes was not

error.

4. Sympathy Factor.

(23) Defendant asserts that ambiguity in the record concerning the

court's consideration of sympathy requires reversal. Defendant acknowl-

edges the court understood it could properly “consider” sympathy for de-

fendant, but maintains it failed to understand that sympathy alone could

form the basis for a life sentence.

We disagree. In making its sentence determination the court expressly

noted that it could “properly consider sympathy or pity for the defendant in

determining whether or not to show mercy and spare the defendant from

execution” (italics added) and that defendant was “constitutionally enti-

tled™ to have it consider any “sympathy factor raised by the evidence.”

PEOPLE ». ROBERTSON 53

48 Cal.3d 18, — Cal Rptr, —, — P.2d — [Feb. 1989)

As the basis for his claim of ambiguity, defendant points to the court's

subsequent statement in ruling on his penalty-reduction application that

although it recognized and considered sympathy factors raised by the evi-

dence, “the Court still feels that it is bound to review the evidence and

consider and take into account and be guided by aggravating and mitigating

circumstances” set forth in the statute. Read in context, however, with the

court's earlier express recognition that sympathy could form the basis for

Mercy, this statement was fully consistent with our subsequent decisions

relied on by defendant. (E.g., People v. Easley, supra, 34 Cal.3d at pp. 875-

879; People v. Lanphear, Supra, 36 Cal.3d 163. 166-167; People v. Brown

(1985) 40 Cal.3d $12, 536-540 {220 Cal.Rptr. 637, 709 P.2d 440], revd. on

other grounds. California v. Brown (1987) 479 U.S. $38 [93 L.Ed.2d 934,

107 S.Ct. 837).) The record thus does not support an inference the court did

anything other than give Sympathy the weight it determined was appropri-

ate in this case.

I. Skipper Error

1. Defendant's Future Conduct.

(24a) Defendant contends the court failed to consider evidence of his

lack of future dangerousness in Prison in violation of Skipper v. South

Carolina (1986) 476 US. 1 (90 L.Ed.2d 1, 106 S.Ct. 1669] and related cases.

In Skipper the trial court excluded evidence the defendant had conducted

sumself well in prison since arrest. On appeal the United States Supreme

Court reversed, stating “evidence that the defendant would not pose a

danger if spared (but incarcerated) must be considered potentially mitigat-

ing. [Fn. omitted.} Under Eddings (v. Oklahoma (1982) 455 US. 104), such

i May not be excluded from the sentencer's consideration.” (/d. at

p. 5 [90 L.Ed.2d at p. 7}; accord, People ¥. Lucero (1988) 44 Cal.3d 1006,

1026-1027 [245 Cal.Rptr. 185, 750 P.2d 1342]}.)

In the instant case the court, in citing the mitigating factors it had consid.

red, stated it had considered evidence of defendant's “general good con.

duct” while in custody of the county, as well as the “testimony of the two

death row prison guards and the two death row prisoners concerning de.

fendant’s conduct while at San Quentin prison, and, particularly, the

changes in his attitude and his actions since his rebirth or newly found

interest in the Bible and study of religion. Based on this testimony,” the

court stated, “the Court is of the opinion that as long as [defendant] is

Confined 10 prison, he will not pose any significant danger to the public.

including other prisoners or prison officials.” Thereafter, in summarizing

the factors in aggravation and mitigation, the court stated, “The Court does

AOL Consider the fact that [defendant) does not appear to pose a threat to

ct. att. ct .

S84 PFor.t v. ROBERTSON

48 Cal 3d 18, — Cal Rpt. —, — P2d — [Feb 1989]

’ . i factor either in aggravation

society as long as he's confined to prison to be a a

or mitigation [of] punishment for these offenses.

in reviewing its decision in connection with defendant's penalty-

Pe the court stated: “The sixth ee

comabtened Sts CREPE ttre 0 Oe ee ea

ssa camalien be wuldiinn tees Ganees ae ie Gem a Oe

peeeepeibelicwedner he ponte’ carnage: npr fustreres Aa-wag

threat to socicty as long as he's confined to a prison. And considering

relay eae wth dhs french petimeecd trmye - pei Cane 7 ap

at least, but the Court did make it clear that the Court did not consider

an aggravating factor, the fact that he might still be a danger.

In light of the court's recitation of defendant's lack of future danger-

Paw ben a sympathy factor and its express statement that -- = Sa

in weighing these factors” that defendant would not pose a threat yar

so long as he is confined to prison, we reject defendant's premise

court failed to consider his future nondangerousness in gear rege

It appears, rather, that the court recognized defendant's een

vant mitigating evidence, but ultimately determined on balance <oeoagpes —

was of inconsequential weight as against the factors in aggra

insufficient to mitigate punishment.

i i dings v. Oklaho-

> A the United States Supreme Court stated in Ed

sms (1902) 455 U.S. 104 [71 L.Ed.2d 1, 102 S.Ct. 869): “Just as the State

— may not by statute preclude the sentencer from considering any ne

factor, neither may the sentencer refuse to consider, as a matter of 1, df

relevant mitigating evidence. . . . The sentencer . . . may — =<

af ape ache sp may ~ ppp pentie an eve cog

ight by excluding such evi rom. . . cons: Ud. ’

1st Vaasa Vices Gradeones neck ue cmetee apaaiae

i . the high court in a : ;

po pet ny wom permits the defendant to present am ated ~

mitigating circumstances.” [Citation.) Lockett [v. Ohio (1978) 4 t

200] someioes the cuntunaer a0 ligen:” hl at p. 115, fn. 10 [71 L.Ed.2d at p.

11), italics added.)

in v. Lynaugh (1 487 U.S. _. [101 L.Ed.2d 155, 108 S.Ct.

sath dled he teeta his mani ike Oe acmaneaaeioen,

court Statement. that 1 did not consider as an aggravating factor that defendant

might sl be danger outs wus eapemse To reer evince fend fo

34 773, wherein this court reversible error under } death penal-

iene outa oudiaunenenndaiiogamuategntaend apadaneitelaniele

gerousness. (/d a1 pp. 771, in. 33, 774.)

Peorie » ROBERTSON $s

48 Cal 3d 18, — Cal Rptr —, — P.2d — [Feb 1989}

the jury was instructed defendant would receive a sentence of death if it

answered “yes” to two “Special Issues"—one being whether defendant

would be dangerous in the future. Defendant asserted the procedure pre-

vented the jury from giving independent mitigating weight to his good

conduct in prison. The high court in a plurality opimion held otherwise.

Because defendant's good conduct was relevant to the issue of future dan-

tunity to have his sentencing jury consider and give effect to any mitigating

impulse that [his] prison record might have suggested .. . -” (Ud. at p.

_ [101 L.Ed.2d at p. 168].) Concurring, Justice O'Connor, joined by Jus-

tice Blackmun, stated that “a State may not constitutionally prevent the

sentencing body from giving effect to evidence relevant to the defendant's

background or character... . Indeed, the right to have the sentencer

consider and weigh relevant mitigating evidence would be meaningless

unless the sentencer was also permitted to give effect to its consideration.”

(id. at p. — [101 L-Ed.2c at pp. 172-173].) The dissent agreed it was not

enough that the jury be allowed to hear defendant's mitigating evidence; it

must also be allowed to give independent mitigating weight to the evidence.

Ud. at p. — [101 LEd.2d at p 177] (dis. opn. of Stevens, J.).)

(24>) What the Supreme Court's death penalty jurisprudence con-

demns, as the dissent in Franklin observed, is “the erection of barriers to the

jury's full consideration of mitigating evidence. . . .” (Ibid.; see also Mills

v. Maryland (1988) 486 U.S. _, —. [100 L-Ed.2d 384, 394, 108 S.Ct.

1860].) In the case at bench there was no barrier to the trial court's full

consideration of defendant's evidence of future nondangerousness. The rec-

ord is clear the court admitted the evidence, listened to 1 and considered it;

thereafter the court determined, as it was entitled to do, that in the circum-

stances of this case the evidence was of minimal or no weight as balanced

against the circumstances of the crimes and defendant's pattern of violent

conduct. In so doing the court did not err.

Were we, however, nevertheless to assume the court refused to consider

this mitigating evidence, the question would be whether the court's refusal

was harmless under the Chapman (Chapman v. Culifornia (1967) 386 U.S.

18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]) standard of review.

(People v. Lucero, supra, 44 Cal.3d at p. 1032; see /Mitchcock v. Dugger

(1987) 481 U.S. 393, 398-399 (95 L.Ed.2d 347, 353, 107 S.Ct. 1821): Skipper

v. South Carolina, supra, 476 U.S. at p.8 [90 L.Ed.2d at p. 9}; People v.

McLain (1988) 46 Cal.3d 97, 109 [249 Cai. Rpir. 030, 757 P.2d $69); ef.

Mill «. Marylond. supra, 4%6 US. at p — [100 L-Ed2d at p.400})

Applying the Chapman test, we are of the view the court's failure. if any,

to consider defendant's evidence of his lack of future dangerousness is

oe -

In|

—_—-

ner.

$6 Pior.e ». Ro#rrtson

48 Cal3d 18, — CalRptr —, — P2d — [Pech 1989)

harmless beyond a reasonable doubt. As circumstances in aggravation the

court found the defendant had been convicted of two separate counts of first

degree murder personally committed by him, with jury findings of nine

special circumstances (see fn. 2, ante, p. 28), as well as three prior acts of

criminal violence involving threats of murder and mutilation and extraords-

nary physical abuse. The court found defendant planned the kidnappings

for the purpose of sexual assault and grat ion, as shown by his cruising

pain.” From the manner in which the murders were committed, including

“the extreme mutilation of the bodies before and after death,” as well as the

circumstances of the assaults on Ernest F.. Kim P. and Catherine A.,"’ the

court determined defendant obtained gratification from inflicting pain and

discomfort, “both mental and physical” on his victims.

the factor of (defendant) attempting to remove the breasts, being unsuccess-

DAs recounted by the court, these circumstances include that defendant the knife to

[Emesi F's) throat and later on to his groin and to his testicles.” yabbung ham " the neck

PEOPLE vy ROBERTSON $7

48 Cal 3d 18, — Cal Rpt —. — Pld — [Feb 1989}

with the circumstances of the offenses, including defendant's planning activ-

ity, and with defendant's pattern of violent sexual conduct, including his

purpose and pleasure in inflicting extreme pain and mutilation on his vic-

tims, we find the court's failure, if any, to weigh in mitigation defendant's

iack of future dangerousness could not have affected its penalty determina-

tion and is harmiess beyond a reasonable doubt.

2. Defendant's Age and Vietnam Experience.

(26) In addition to the foregoing claim, defendant contends the court

refused, or must be presumed to have refused, to consider evidence he

presented concerning two other issues: his mental age and the effects of his

military service in Vietnam.

Insofar as defendant's age is concerned, the point is untenable. In rele-

vant part the-court’s statement of reasons was as follows.

“Factor H: ‘The age of the defendant at the time of the crimes.’ [*)] Under

the facts of this case, the Court does not consider his age as either a

mitigating or aggravating factor. Although most witnesses placed his intel-

lectua! development at about a 12-year level, he had fully matured physical-

ly, had served in the Job Corps and substantial time in the Army, including

his two tours of duty in Vietnam. And according to his statements to the

doctors, he had been a truck repairman and driver and a helicopter crew

chief and a door gunner while in Vietnam. So considering those factors, the

court doesn’t feel that age is either a mitigating or aggravating factor.”

It thus is clear the court considered defendant's age-related evidence, but

determined the evidence did not rise to a sufficient level of persuasiveness to

establish a mitigating circumstance. ihe record supports this determina-

tion. (See generally People v. Brown, supra, 46 Cal.3d at p. 456 and cases

cited.) In a related vein the court later expressly noted as factors in muitiga-

tion defendant's mental rettz2auion and emotional immaturity. There was

no error

Defendant's claim concerning the effects of his Vietnam experience is

equally meritiess. Under both factor (c)—whether the defendant was under

had “agonized over it for three days.” Viewed in content, it is evident the court's reference

was not to any pernicular difliculty in determining the appropnate penalty for defendant, but

rather, to a genete: “fliculty im acceptung the unisamber responsibility, ee °

jury, of determenme semence ns capsial case Thess borne om by the couri's remarks fol-

lowing defendant's yoty warver, where a stated “Obviously I'm ocr enarous to aume the

fesponsitelty. It esn't the hind of reqpomwtelety that the Court takes hghtly and ut rn't the

kind of responubility that the coert # anasous to seek. On the other hand, it 1 one of the re-

sponsidilities of the office that | hold at the perticular ume ~

i ee

—

58 Peor.e v. RowiRTson

48 Cal 3d 18, — Cal Rpwr —, — Pd — [Fed 1989)

the influence of extreme mental or emotional disturbance, and factor (g}—

whether mental discase or defect impaired the defendant's capacity to ap-

preciate the Oe Oe ns Se aoe

quirements of law, the court specifically found defendant “was not

acting under 6 pott-traumatic stress disorder.” Under factor (j)}—sympathy

factors generally, the court specifically noted “the historical

information relating to the defendant provided by his mother end sister and

apterere tena ." This background information necessari-

ly included $ “substantial time in the Army. ee

tours of duty in vetnam,” referred to by the court in discussing ‘s

mental age and testified to at length by defendant's expert, Mr. Wulbrecht.

In these circumstances, failure expressly to refer to the general psychologi-

cal effects asseriedly arising out of defendant's Vietnam expenence was not

error.

J. Burden of Proof.

(27) Defendant contends the court erred when it ruled that “neither

side has the burden of proof in the penalty phase of this trial. . . .“ He

recognizes this court has held the beyond-a-reasonable-doubt standard of

proof on the question of the appropriateness of the death penalty is not

constitutionally required. (See People v. Frierson (1979) 25 Cal.3d 142, 178-

180 (158 Cal.Rptr. 281, $99 P.2d $87); accord, People v. Jackson (1980) 28

Cal.3d 264, 315 [168 Cal. Rptr. 603, 618 P.2d 149); People v. Rodriguez.

supra, 42 Cal.3d at pp. 777-779 [1978 statute].) He argues, however, the

court erred in failing to allocate any burden on the prosecution. This omis-

sion, he asserts, opened the door “to a coin flip determination of the death

penalty.”

The court's statement related to the order and number of penalty phase

argumenis it would permit. In determining the question the court relied on

People v. Bandhauer (1967) 66 Cal.2d 524, $31 [$8 Cal.Rptr. 332, 426 P.2d

900]. where this court stated: “At the trial on the issue of penalty, . . .

neither side has the burden of proving that one or the other penalty is the

proper one... .”

To say that neither side bears the burden is not, as defendant urges, to

incur the risk the death sentence will be arbitrarily imposed. Prerequisite to

imposition of that penalty the trier of fact musi find true beyond a reason-

able doubt at leas! one special circumstance and m..! consider, be guided

by and weigh specific aggravating and mitigating circumstances. (People v.

Jackson, supra, 28 Cal.3d at p. 315; Peaple vy Frierson, supra, 25 Cal.3d at

p. 180.) Pursuant to the 1978 statute, deemed apphcabie by the court in this

respect, the death penalty can be applied only if the trier of fact finds

PEOPLE v. ROBERTSON

48 Cal.3d 18, — Cal Ror —. — Pid — (Fed 1989)

Mang er Cal. 3d 730 Se. wae the vor? ond the

| . 42 Cal.3d 730, 779.) | , ow

178 omens soqeine the tral court to review the +"y of fact’s determina’

to assure the weight of the evidence Supporis

In sum, the court's burden-of-proof ruling was not error.

! nd

K. / Defendant's Absence From Penalty-reduction Hearing @

Sentence.

j he sentence-modification

dant contends his absence att ; <<

a. Bay ienponition of sentence requires reversal of the judgmen

facts relevant to this claim are as follows.

i isi Ity in

ape oe Panel court announced it dear ro make aa.

i should be death. t or oe

pag pene defendant ex remorse for the deat

. son hearing and

women." The court then set the matter for penalty ee tai to waive

the waiver at that time, but asked counsel to prepare and submit a written

waiver, whch it would consider at a later time.

week i iver executed by defendant and

“ : peor = tied rend the proveceter. The waiver, an —

ion of Ad form set out in section 977, stated that defendant, having

sdvised of his right to be present at all stages of the proceedings.

i hearing of any motion or other proceed-

peng a: rr enatediog a ins motion to reduce sentence 1s

— as ee ni t hereby requests the court to

commencement penalty-reduction hearing the court noted

thee OF tn vrrcfendant was not and a waiver of defend:

“The court further noted the form spe

at the modification hearing and at al

A "

Defendant inyust [sic} to the two girls,

Your Honor, | know the cnee I did was nant

aT aay an 1 t cwmsl tate any he EM BS thene

hock to hfe, | woukd div 1, but Lhnow that b can't Pring

me. | uadersiand, and thank you for heanng my Case:

fe. And what you gave

— —— eee -

—S

PLOPLL » ROBLRTSON

48 Cal 3d 18. — Cal Rptr —, — Pld — [Fed 1989)

of the latter was inferred from the document. The court then denied the

penalty-reduction application and formally imposed the judgment of death.

Defendant's constitutional and statutory right to be present at the sen-

tence modification hearing and imposition of sentence is not in dispute.

(Cal. Const., art. 1, § 15; Faretta v. California (1975) 422 U.S. 806, 819, fn.

15 [45 L.Ed.2d $62, 95 S.Ct. 2525); Snyder v. 4. ssachusetts (1934) 291 U.S.

97, 105-108 [78 L.Ed. 674, $4 S.Ct. 330, 90 A.L.R. 575); People v. Jackson,

supra, 28 Cal.3d at pp. 309-310; §§ 977, 1043.) The question is whether he

could waive the right and, if so, did he effectively waive it here.

Defendant argues that in a capital case the personal presence of the

defendant at every “critical phase” is mandatory and cannot be waived. In

support he cites Hopt v. Uiah (1884) 110 U.S. 574, $79 [28 L.Ed. 262, 4

S.Ct. 202} and two federal decisions, Hal! v. Wainwright (11th Cir. 1984)

733 F.2d 766, 775-776 and Bustamanie v. Eyman (9h Cir. 1972) 456 F.2d

269, 273-274 (plur. opn.).

Although in Hopt, supra, the United States Supreme Court stated a

capital defendant could not waive his presence at a critical stage of the

proceeding, the holding was based on a statute mandating the defendant's

presence. (110 U.S. at p.578 [28 L.Ed.2d at p. 265); see Diaz v. United

States (1912) 223 U.S. 442, 458 [56 L-Ed. $00, 32 S.Ct. 250); see also Snyder

v. Massachusetts, supra, 291 U.S. at p.117, fn. * [What Hopi said about

presence was dictum].) Subsequently, in Snyder v. Massachusetts, supra, at

page 106 [78 L.Ed. at page 678), the high court stated the federal constitu-

tional right “no doubt . . . may be lost by consent or at times even by

misconduct.” Thereafter, in Jilinois v. Alien (1970) 397 U.S. 337, 343 [25

L.Ed.2d 353, 90 S.Ct. 1057], the court expressly held a defendant can lose

(Hall v. Wainwright, supra, 733 F.2d at p.775, see also Bustamante v.

Eyman, supra, 456 F.2d at p.274 [lead opn. of Ferguson, J.).) -

In Peede v. State (Fla. 1985) 474 So.2d 808, certiorari denied 477 U.S.

909 [91 L.Ed.2d 575, 106 S.Ct. 3286}, the Florida Supreme Court took a

different view. Observing that in Drope. supra. 420 U.S i€2, the United

States Supreme Court expressly left open the question of whether presence

at a capital inal may be waived. the court determined waiver was permnni-

ble. Subsequent to Drope, the Florida court noted, rule 43 of the Federal

PE LPG! OOP TEP FS

~~ 2)

PEeor._e v ROBERTSON 61

48 Cal 3d 18, — Cal Rptr —, — P.2d — [Fed 1989)

Rules of Criminal Procedure, relating to the defendant's presence, was

changed to eliminate the distinction between capital and noncapital cases,

thus permitting a defendant in a capital as well as a noncapital case to waive

the right to be present at trial in two circumstances. (474 So.2d at pp. 812-

813.) The Florida Supreme Court concluded that “just as in noncapital

cases, the presence requirement is for the defendant's protection and, just as

he can knowingly and voluntarily waive any other constitutional nghi, a

defendant can waive his right to be present at stages of his capital trial if he

personally chooses to voluntanly absent himself. [Fn. omitted.) (474 So 2d

at p.814.) To hold otherwise, the court reasoned, would force a defendant

into “the untenable position of having to disrupt the courtroom to such an

extreme as to result in his removal, thereby seriously prejudicing his case.”

(Ud. at p. 815, citing J/linois v. Allen, supra, 397 U.S. at p. 344 [25 L.Ed.2d at

p. 359). See generally 3A Wright, Federal Practice and Procedure, Criminal

2d (1982) § 723, p. 18.)

The issue in this state ¢-idently is of first impression. (Cf. People v. Odle

(1988) 45 Cal.3d 386, 407 [247 Cal. Rptr. 137, 754 P.2d 184] and fn. 8

(waiver of presence for rereading of testimony); People v. Grant (1988) 45

Cal.3d 829, 845-846 [248 Cal. Rptr. 444, 755 P.2d 894) [waiver at proceed.

ings not necessitating defendant's presence).) Having considered t.1e matter

closely, we find the reasoning of the Florida Supreme Court persuasive.

Permitting waiver, moreover, is consistent with the solicitude shown by

modern jurisprudence to the defendant's prerogative to waive the most

crucial of rights. (29) A capital defendant may waive counsel and repre-

sent himself in propria persona (Faretta v. California, supra, 422 U.S. 806;

People v. Joseph (1983) 34 Cal.3d 936, 943 [196 Cal. Rptr. 339, 671 P.2d

843)), he may waive jury trial (People v. Deere, supra, 41 Cal.3d at pp. 359-

360), he may decline to put on a defense in the quilt phase (People v. Teron

(1979) 23 Cal.3d 103, 108 [151 Cal. Rptr.633, % P.2d 773]), he may, with

the consent of counsel. plead guilty to the u derlying charges and the

alleged special circumsiances (People v. Chadd, supra, 28 Cal.3d 739, 746),

he may testify to his preference for a sentence of death (People v. Guzman

(1988) 45 Cal.3d 915, 961-962 [248 Cal. Rptr. 467, 755 P.2d 917)), and he

need not participate in the presentation of the defense at the penalty phase

(compare People v. Teron.

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