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People v. Whitt10/25/1990
decision rejecting the claim in Whitt I was "law of the case." (See Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal. 3d 49, 56-57 [192 Cal. Rptr. 857, 665 P.2d 947].)
In answer to a single question on cross-examination at the special circumstance retrial, DeLoach indicated that detectives knew he had previously worked as a paid police informant before he actually solicited or told them about defendant's alleged jailhouse admissions. This testimony contradicted a key factual assumption underlying our prior holding that the state,
through DeLoach, had not violated defendant's constitutional rights by "creat a situation likely to provide it with incriminating statements." (Whitt I, supra, 36 Cal. 3d at pp. 742, 744.) On this basis, defense counsel moved to strike DeLoach's entire testimony and for a mistrial.
At a subsequent hearing outside the jury's presence (see Evid. Code, § 402), DeLoach unequivocally retracted his cross-examination statement, claiming it was based on faulty memory. He explained that he did reveal his prior activities to the district attorney some time after he spoke to defendant and the detectives, but he never told the detectives he had previously worked as an informant. DeLoach said his voir dire testimony, unlike his cross-examination testimony, had been refreshed with pertinent portions of the transcripts from the first trial. The trial court concluded, as it was empowered to do, that DeLoach's voir dire testimony was credible. The court denied defendant's motions to strike and for a mistrial.
Absent a controlling change in the facts, the court properly determined that our prior holding that DeLoach was not a "police agent" governs defendant's case on retrial. Nor have court decisions since Whitt I, supra, 36 Cal. 3d 724, significantly changed the pertinent legal principles, such that the law of the case should be disregarded. (See Maine v. Moulton (1985) 474 U.S. 159, 176 [88 L.Ed.2d 481, 496, 106 S.Ct. 477] [Sixth Amendment violation depends upon government's "knowing exploitation" of an opportunity to coax information from a formally charged suspect in the absence of counsel]; see also People v. Howard (1988) 44 Cal. 3d 375, 399-402 [243 Cal. Rptr. 842, 749 P.2d 279] [no Sixth Amendment violation under Moulton or Whitt I where "circumstances bear marked similarity to those in" Whitt I ].) We see no error.
E. Defendant's Testimony
Defendant was called to the stand as the last witness at the penalty phase. Shortly after the examination began, the prosecutor objected to two back-to-back questions on relevance grounds: " o you want to live?" and "Why do you deserve to live?" The court summarily sustained both objections before any answer was given. Without attempting to reframe the questions or make an offer of proof, defense counsel Broderick declined to proceed with the examination. The prosecutor did not cross-examine defendant, and the court asked him to step down.
Defendant first contends the court's evidentiary rulings violated his right to testify in his own behalf under the federal and state Constitutions. He relies primarily upon People v. Robles (1970) 2 Cal. 3d 205, 214-215 [85 Cal. Rptr. 166, 466 P.2d 710], affirming the "fundamental importance" of this guaranty. However, Robles found a violation of the right where a defendant who demands to " take the stand," even contrary to the competent advice of counsel, is p
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