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People v. Mayfield1/2/1997
xercise sympathy if you feel that that is what you want to do. And I'm not saying that you cannot use sympathy. I'm saying if you use sympathy as a basis, you might as well eliminate the death penalty. Every one of us has a mother. Every one of us has a father. Every individual that commits a crime would be able to come in and say I don't want my son to die. And because of sympathy you should not impose the death penalty. You, as jurors, have that decision. You have that determination to make as to what penalty."
A reasonable juror would not have understood this argument as an assertion, contrary to the court's instructions, that sympathy for the defendant could not be considered. Rather, a reasonable juror would have understood the prosecutor's argument to be that sympathy for the defendant should not be the exclusive penalty consideration and that in judging the weight to be given sympathy as a mitigating circumstance, the jurors should give relatively little weight to a showing that any capital defendant might be expected to make--for instance, that the defendant's execution would inflict suffering on his or her parents and close relatives. This argument was not improper. (See People v. Arias, (supra) , 13 Cal. 4th 92, 177.)
2. Facts Not in Evidence
Referring to defendant's prior felony convictions, the prosecutor stated: "And his family--and there were other people that worked with him. When he's convicted the courts don't throw him out in the water and say sink or swim, go and sin no more. You know that. There were people that worked with him. And he ignored it. He ignored the help that they offered him . . . ." Defendant contends that this was misconduct because no evidence was presented that the criminal Justice system had provided rehabilitative services to defendant after his conviction.
Immediately after the argument just quoted, the prosecutor referred to the testimony of Gregory Snowden, a peace officer, that he did not want defendant put to death. Concerning this testimony, the prosecutor stated: "That is not the opinion of all law enforcement. Just because he's a law enforcement, he's family. You can ask a number of law enforcement officers in Rialto P.D. what they think. That opinion, just because Greg Snowden is law enforcement, a C.H.P. officer, does not express the view of law enforcement in general just because of the conduct of this man." Defendant contends that this remark was misconduct because there was no evidence before the jury that law enforcement officers other than Gregory Snowden did not share his opinion that defendant's life should be spared.
Neither of these arguments was misconduct. Regarding the availability of rehabilitative services, the prosecutor elicited testimony that defendant's family did not turn away from him after his convictions but instead continued to counsel and assist him. This appears to have been the main point the prosecutor was making. But the prosecutor could also properly refer to the availability of rehabilitative services through the criminal Justice system, even though there was no evidence on this point, because counsel are permitted in argument to make reference to matters of common knowledge. ( People v. Washington (1969) 71 Cal. 2d 1061, 1085 [80 Cal. Rptr. 567, 458 P.2d 479].) Nor was it misconduct for the prosecutor to assert that Gregory Snowden's expressed wish that defendant not receive the death penalty was "not the opinion of all law enforcement." A reasonable juror would not have understood the argument as an assertion that the prosecutor had personal knowledge that particular officers held a different view. Rather, a reasonable juror would have understood the argument as being only tha
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