# Opposition Brief — Andrew Edward Robertson v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 879

## Text

. ites . SO Ae ee a ee

dias 9 fs ORIGINAL a
FILED

4) JUL 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,
v.
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).)

ee

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

1. “At this point the Robertson I opinion notes:

. ‘ 9

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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

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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,

22

Priori +» Romarso~n
48 Cal WIR — Col Rptr —, — P2U — [Feb tone]

ap

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

a3

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
© 190 >. sums. (cK 30D). bednap (former § 190 2. subd fc HF Hud). and rare (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
ee

“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

é
Lo
x
>?
F
%
4
*
>»

"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—
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

Se

,
\

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 ”

a

“= a
contest, the court's reference to the absence of evidence supportive of fac-
sore (2) and (g) was no more then 0 tiatement chat defendant bed See ©
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 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 — =) 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|

—_—-
ee

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

a?

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 ; | ee

Peor_e » ROBERTSON 63
48 Cal 3d 18, — Cai Rp —, — Pld — [Fed 1989)

L. Cumulative Error.

Defendant u that if we find no single error of itself requires
fe. A the paar ha ahem of the errors was prejudicial . Central to his
argument is the premise the court found the determination of penalty to be
difficult and extremely close. As indicated, we reject this premise. (See ~
14, ante, p. $6.) Having carefully reviewed the record and considered d
matter closely, we are of the view there is no reasonable possibility ¢ a
result more favorable to defendant im the absence of any of the identified
errors and their cumulative impact was harmless beyond a reasonable
doubt. (People v. Brown, supra, 46 Cal.3d 432, 448; Chapman v. California,
supra, 386 US. 18, 24 [17 L-Ed.2d 705, 710-71 1).)

M. Constitutionality of 1977 Statute.

JH intains that because far less valued interests are protect-
pe pay tarde yeemenntin standard (¢.g., In re Winship (1970)
397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068) [adjudication of juvenile
delinquency}; People v. Feagley (1975) 14 Cal.3d 338 [121 Cal. Rptr. $09,
$35 P.2d 373] [adjudication of mentally disordered sex offender status):

relevant circumstances. ” (People v. Rodriguez, supra, 42 Cal.3d at p. 779: cf.
People v. Bandhawer. supra. 66 Cal.2d at pp. 530-531.) The statute's failure
to impose a beyond-a-reasonabl:-doubt standard on the decision regarding
the appropnateness of death 1s not wolative of equal protection.”

letter ‘ of
after ab argument. dtendant has directed our sttentwmn to the recent case
- . Avhee D Cor, Dec. 22, 1988) F.2d — (Dock. No. 84.2009) in which the

to Propit v. Roni rison
48 Cal.3d 18. — Cal Rpt —, — Pld — [Feb 19H9)

Second, defendant asserts the 1977 statute violates the crucl and unusual
punishment and due process clauses of the state and federal Constitutions.
(Cal. Const., art. 1, §§ 7, 15, 17; U.S. Const., 8th and 14th Amends.) We
resolved these issues adversely to defendant in People v. Frierson. supra. 25

Cal.3d 142 and People v. Jackson, supra, 28 Cal.3d 264. We adhere to those
decisions here.

N. Disproportionality.
(32) Pointing to his mental and emotional problems and difficult child-
hood, defendant argues his death sentence is constitutionally disproportion-

ate Having reviewed the record in its entirety, we believe that in view of the
undisputed facts the claim must be rejected.

CONCLUSION
The penalty judgment is affirmed.
Lucas, C. J., Arguelles, J., Eagleson, J.. and Kaufman, J., concurred.
MOSK, J.—I dissent.

Like the majority, I recognize the enormity of defendant's crimes. Unlike
the majority, 1 also recogmze that prejudicial Skipper error (Skipper v.
South Carolina (1986) 476 U.S. 1 [90 L.Ed.2d 1, 106 S.Ct. 1669)) was
committed at trial. In affirming the judgment of death, the majority choose
to overlook the prejudicial error. In voting to reverse, I merely follow as I
must the path of principle.

Before 1 can proceed to the discussion of Skipper error and its effect on
the outcome, | must review the facts at some length.

The penalty phase was retried to the court pursuant to a waiver of jury
trial by the prosecution and the defense. The judge on retrial was not the
of the parties were transcripts of prior testimony in this action and testimo-
ny in a habeas corpus proceeding conducted subsequent to the initial trial.
court deciared the Anzona death penalty statute unconstriutional for creating a presumption
that death was the appropnate punishment In hght of the substantial differences between the
Anaona death penalty statute and Cabforma’s 1977 statute. we find nothing in Adamson to

Suggest a wrnilet deficrency im the 1977 statute nor in the sentencing process in defendant's
case. (See People v. Easley, supra. 34 Cal.36 858, 883-884; see also fn. 10, ante.)

Peor.e v. ROBERTSON 65
48 Cal 3d 18, — Cal Rptr. —, — P.2d — [Fed. 1989] mn

Those transcripts described the circumstances of the crimes charged. The
tale is recounted in People v. Robertson (1982) 33 Cal.3d 21, 31-32 [188
Cal.Rptr. 77, 655 P.2d 279], which is quoted in the majority opinion, ante,
at pages 28-30.

In its case-in-chief, the prosecution set out to show that the penalty of
death was appropriate for defendant. At the penalty phase of the initial trial
the defense had attempted to demonstrate that defendant's culpability was
reduced by reason of mental disease or defect. In evident anticipation of the
case it expected the defense to present here, the prosecution called several
expert witnesses.

Dr. Otto Gericke, a psychiatrist, testified that defendant had a character
disorder, was emotionally immature, exhibited adolescent attitudes and
behavior, and was of low average intelligence; at the time of the crimes in
question he was sane and acted with undiminished capacity; he had not
suffered any major organic brain damage, had no mental disease or defect,
was not a mentally disordered sex offender, and was not affected by post-
traumatic stress disorder.

Dr. Oren McEwen, a psychologist, stated that defendant was of low
average intelligence and had experienced rejection and overprotection as a
child; he had a passive-aggressive personality disorder, a dysfunction arising
out of dependency coupled with fear of loss of support and significant anger
or rage; he had no psychosis or neurosis, did not suffer from any mental
disease or defect, and was not affected by posttraumatic stress disorder.

Dr. Robert Flanagan, a psychiatrist, testified that defendant was a schi-
zoid personality with a mixed character disorder with antisocial features; he
was sexually aggressive, received gratification from inflicting pain, and had
feelings of inadequacy; he was of average intelligence but lacked insight and
had concern only for himself; he was not psychotic or neurotic, did not
suffer from any mental disease or defect, and was not affected by posttrau-
matic stress disorder; he continued to be dangerous.

Dr. Charles Larkin, a psychiatrist. stated that defendant did not have a
Passive-aggressive personality drorder, bul a personality disorder of a
mixed type with antisocial, aggressive, and borderline features with poor
impulse control; he was of borderline to low average intelligence, as a child
he developed slowly and suffered emotional trauma, he exhibited antisocial
behavior, he had no psychows, mental disease, or reality distortion, was not
affected by postiraumatic stress disorder, and had no neurological disorder,
he might continue to be violent.

ke ee ee

66 Piorit » Ron RTSON
48 Cal36 18, — Cal Rewr, —. — Pd — [beh 19K9)

Dr. James Ramsaran, a psychiatrist, testified that defendant was a men-
tally disordered sex offender and had an antisocial personality disorder with
& predisposition to commit acts to obtain sexual gratification.

Finally, Dr. David Tansey, psychologist, stated that defendant had a
passive-aggressive personality disorder with antisocial features.

To support its position that death was appropriate, the prosecution also
introduced evidence of prior crimes. Ernest F. testificd 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 him, placing a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0568%3A3. Public record. Not legal advice.