People v. Whitt10/25/1990
revented from doing so. (Id., at p. 215, italics added; in accord, People v. Lucky (1988) 45 Cal. 3d 259, 282 [247 Cal. Rptr. 1, 753 P.2d 1052]; People v. Harris (1987) 191 Cal. App. 3d 819, 825 [236 Cal. Rptr. 680]; cf. Rock v. Arkansas (1987) 483 U.S. 44 [97 L.Ed.2d 37, 107 S.Ct. 2704].) No such bar was erected here. Defendant was called as a witness and answered preliminary questions. The court sustained objections to a total of three questions, but did not prevent defense counsel from rephrasing them or making an offer of proof. Defendant's Robles claim fails.
Defendant insists that by sustaining prosecutorial objections, the court violated his federal constitutional right to have the sentencer consider all relevant mitigating evidence. (See Skipper v. South Carolina (1986) 476 U.S. 1, 4 [90 L.Ed.2d 1, 6-7, 106 S.Ct. 1669]; Eddings v. Oklahoma (1982) 455 U.S. 104, 110 [71 L.Ed.2d 1, 8, 102 S.Ct. 869]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 989-990, 98 S.Ct. 2954] (plur. opn. by Burger, C. J.); People v. Easley (1983) 34 Cal. 3d 858, 877-878 & fn. 10 [196 Cal. Rptr. 309, 671 P.2d 813].) We agree. Because the range of constitutionally pertinent mitigation is so broad, the questions "Do you want to live?" and "Why do you deserve to live?" were not facially irrelevant. The court erred in sustaining the prosecutor's objections without hearing defendant's answers.
The prejudicial effect of " Skipper error" is governed by the beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18, 24 [17
L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065] (Chapman). (People v. Lucero (1988) 44 Cal. 3d 1006, 1031-1032 [245 Cal. Rptr. 185, 750 P.2d 1342]; see Hitchcock v. Dugger (1987) 481 U.S. 393, 399 [95 L.Ed.2d 347, 353, 107 S.Ct. 1821]; Rose v. Clark (1986) 478 U.S. 570, 576-579 [92 L.Ed.2d 460, 469-471, 106 S.Ct. 3101].) On this record, however, we are precluded from reversing the penalty judgment on grounds that the error was prejudicial.
The problem is illustrated by Evidence Code section 354, which has long prohibited state appellate courts from reversing a judgment based on the "erroneous exclusion of evidence" unless there is a "miscarriage of justice," and the " substance, purpose, and relevance of the excluded evidence was made known to the [trial] court by the questions asked, an offer of proof, or by any other means." (Italics added.) The statute serves two important purposes where, as here, an appellant complains that questions he asked of his own witness at trial were wrongly disallowed on relevance grounds.
First, the "offer-of-proof" requirement gives the trial court an opportunity to change its ruling in the event the question is so vague or preliminary that the relevance is not clear. (See People v. Redmond (1981) 29 Cal. 3d 904, 912 [176 Cal. Rptr. 780, 633 P.2d 976]; People v. Demond (1976) 59 Cal. App. 3d 574 [130 Cal. Rptr. 590], 588; People v. Thomas (1970) 3 Cal. App. 3d 859, 864 [83 Cal. Rptr. 879].) Second, even where the question is relevant on its face, the appellate court must know the "substance" or content of the answer in order to assess prejudice. (Cf. People v. Collins (1986) 42 Cal. 3d 378, 383-385 [228 Cal. Rptr. 899, 722 P.2d 173
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