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People v. Whitt10/25/1990
].) This requirement is met only where the wording or context of the question makes the expected answer clear, or where the proponent of the evidence makes an offer of proof. (See People v. McGee (1947) 31 Cal. 2d 229, 242-243 [187 P.2d 706]; People v. Rowland (1968) 262 Cal. App. 2d 790, 798 [69 Cal. Rptr. 269].)
In this case, though the question "Why do you deserve to live?" might produce a significant answer, the phraseology is so inherently broad, and the range of conceivable answers so vast, that we cannot know whether defendant's actual response might have influenced the penalty determination. (Cf. People v. Hunter (1989) 49 Cal. 3d 957, 980-981 [264 Cal. Rptr. 367,
782 P.2d 608]; compare People v. McLain (1988) 46 Cal. 3d 97, 108-109 [249 Cal. Rptr. 630, 757 P.2d 569] [expert opinion of defendant's lack of future dangerousness in prison]; People v. Heishman (1988) 45 Cal. 3d 147, 193-194 [246 Cal. Rptr. 673, 753 P.2d 629] [family's description of specific traumatic events and redeeming features in defendant's life]; People v. Lucero, supra, 44 Cal. 3d 1006, 1026-1032 [expert opinion of defendant's lack of future dangerousness and posttraumatic stress syndrome].)
The dissenting justices contend reversal is required under the Chapman standard because the state failed to sustain its "burden" of "prov " that the federal constitutional error was harmless beyond a reasonable doubt. (386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; see also People v. Lucero, supra, 44 Cal. 3d 1006, 1032.) However, the "state-burden" language in Chapman does not literally mean that an appellate court must reverse the judgment because the prosecution has failed to place evidence in the record showing that the error was harmless. Rather, Chapman is not inconsistent with the principles of state appellate review discussed above: where federal constitutional error occurs and prejudice can be assessed from the record, there is a strong presumption that the defendant was prejudiced.
The dissenters do not, of course, cite any case using this standard to reverse a criminal conviction or sentence in the unique situation presented here, i.e., where the conceivable range of answers is unlimited, and the nature of the excluded testimony is known only to the defendant and lies within his exclusive control. Because an appellate court would have no basis for concluding such error was harmless, reversal under such circumstances would be virtually automatic. Justice Mosk virtually concedes the point, while Justice Kennard attempts to circumvent it by speculating about the possible content of the excluded answers. (Cf. Luce v. United States (1984) 469 U.S. 38, 42 [83 L.Ed.2d 443, 448, 105 S.Ct. 460] [defendant must testify to preserve his appellate claim of improper impeachment under the Federal Rules of Evidence; otherwise, any error keeping him off the stand could not "logically" be deemed harmless and would result in "the windfall of automatic reversal"].) We do not read Chapman, supra, 386 U.S. 18, as placing an impossible "burden" upon the People, such that a defendant who withholds the nature of excluded evidence at trial is guaranteed reversal on appeal.
Moreover, contrary to an assertion in Justice Mosk's concurrence and dissent, the record does not indicate that the evidentiary "void" which
precludes our assessment of prejudice is the state's fault. (Conc. and
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