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People v. Mayfield1/2/1997
wland (1992) 4 Cal. 4th 238, 280-281 [14 Cal. Rptr. 2d 377, 841 P.2d 897].)
E. Double Counting of Aggravating Evidence
Section 190.3 lists the factors that a jury determining penalty in a capital case may consider. Among these are factor (a), " he circumstances of the crime of which the defendant was convicted in the present proceeding . . .," and factor (c), " he presence or absence of any prior felony conviction." We have held that factor (c) does not include convictions in the capital proceeding itself, and that all such convictions are properly considered only under factor (a). ( People v. Visciotti, (supra) , 2 Cal. 4th 1, 76.) Defendant contends that in this case the court's instructions and the prosecutor's argument misled the jury into thinking that crimes of which the defendant was convicted in the present case could be "double counted" under both factor (a) and factor (c), thereby artificially inflating their aggravating effect. He argues that this error deprived him of his right to a reliable penalty determination under the Eighth and Fourteenth Amendments to the federal Constitution.
We find nothing misleading in either the instructions or the prosecutor's argument.
The trial court instructed the jury in the language of CALJIC No. 8.84.1 (1986 rev.). As here relevant, the instruction stated: "In determining which penalty is to be imposed on the defendant, you shall . . . consider, take into account and be guided by the following factors, if applicable: (a) The circumstances of the crime of which the defendant was convicted in the present proceeding . . . . . . . (c) The presence or absence of any prior felony conviction." This instruction is not erroneous or misleading; it does not imply that the jury may "double count" evidence under these factors. ( People v. Mincey, (supra) , 2 Cal. 4th 408, 474; People v. Visciotti, (supra) , 2 Cal. 4th 1, 76.)
In argument to the jury, the prosecutor stated that under section 190.3, factor (a), the jury could consider "all of the evidence that was presented in the guilt phase, everything surrounding the shooting of that police officer, and the other offenses that occurred." Referring to factor (c), the prosecutor stated, ". . . in this particular case you have three separate prior felony convictions . . . ." He then proceeded to specify the three prior convictions, none of which occurred in the present proceeding. Later, however, the prosecutor, in support of his argument that defendant had shown "an absolute and total disregard for our laws ever since he has been an adult," MADE THE FOLLOWING CHALLENGED REMARKS: "Not just once. Not just twice. But three times. Ten times, ladies and gentlemen. He has been, after your verdicts, has been convicted of ten felonies. Ten serious felonies. Acts that he has shown a flagrant disregard for the rules that you and I and all of the other law-abiding citizens use as a code of conduct in our society."
Viewing the instructions and argument as a whole, it is not reasonably likely that the jury would have understood the prosecutor to be urging it to "double count" the crimes of which defendant was convicted in the present proceeding under section 190.3, factors (a) and (c). Rather, the prosecutor carefully explained, in a manner consistent with the instructions, that the jury was to consider the crimes adjudicated in the present proceeding under factor (a) and that it was to consider under factor (c) only the three earlier felony convictions. The reference to defendant's 10 felony convictions was not linked to either factor (a) or factor (c); rather, it was part of the prosecutor's argument in rebuttal to the defense evidence, intended to show that defendant w
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